Interference No. 103,587
program was actually used by Raphael Levien to produce his images. As noted by the senior
party, the program was under the sole control of the inventor. Jack Levien’s knowledge of the
specific program of LX-10 first occurred in 1996 when the exhibit was made, and this is long
after the alleged dates of actual reduction to practice in 1987.
Whereas Levien has not established that it was first to conceive, the issue of reasonable
diligence on the part of the junior party is moot.
Although we are of the opinion that the junior party has not established its case for
priority, we are of the opinion that the activities of Raphael Levien directed toward his alleged
conception, actual reduction to practice and diligence occurred in 1987. It is considered that the
year is fixed by the celebration of his brother Alex’s sixteenth birthday on November 30, 1987.
The image LX-9 shows Alex at the celebration holding a birthday cake with the number “16”
thereon.
Even if the party Levien had established an actual reduction to practice prior to its filing
date, it is considered that Levien would not be entitled to prevail because there is an
unreasonable delay of over two years between the alleged actual reduction to practice in
November 1987 and the filing of its patent application in February 1990 which raises an
inference of suppression and concealment, and because that inference has not been rebutted.
As stated in Shindelar v. Holdeman, 628 F.2d 1337, 207 USPQ 112 (CCPA 1980) and
Peeler v. Miller, 535 F.2d 647, 190 USPQ 117 (CCPA 1976), an unreasonable delay between
actual reduction to practice and the filing of an application (constructive reduction to practice)
may raise an inference of intent to suppress the invention. A certain specified length of time may
not be considered per se unreasonable, but rather each case involving the issue of suppression or
concealment must be considered on its own particular set of facts. Shindelar v. Holdeman,
628 F.2d at 1343, 207 USPQ at 117.
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