Interference No. 102,755
Q. Is it --
A. But --
Q. -- basically the same files we
talked about previously?
A. Yes, it would be.
The earliest date mentioned in those files, i.e., Exhibits A
(NE 277-91) and B (NE 292-307) to Nemcheck's affidavit, for
obtaining wear data is the November 30, 1988, date given at
the bottom of NE 287, which Nemcheck testified gives some
indication of when the test data was obtained (NR 246:17-21).
In our view, Nedelk's (ABSC's) failure to conduct such testing
during the first five months of the critical period shows a
lack of diligence, regardless of whether a suitable aircraft
was available for in-flight testing, because the failure to
conduct a test that can be of practical value is inconsistent
with the exercise of reasonable diligence. Naber v. Cricchi,
567 F.2d 382, 385, 196 USPQ 294, 297 (CCPA 1977); Hudson v.
Giuffrida,
328 F.2d 918, 923, 140 USPQ 569, 573 (CCPA 1964). Thus, this
unexcused five months of inactivity at the beginning of the
critical period is another reason for entering judgment
against Nedelk. See Bigham v. Godtfredsen, 222 USPQ 632, 637-
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