Interference No. 104,190
invention. When, however, the delay is caused by working on
refinements and improvements which are not reflected in the
final patent application, the delay will not be excused. Id.
(citing Horwath v. Lee, 564 F.2d at 952, 195 USPQ at 706).
Further, when the activities which cause the delay go
to commercialization of the invention, the delay will not be
excused. Id. (citing Fitzgerald v. Arbib, 268 F.2d 763, 766,
122 USPQ 530, 532 (CCPA 1959)).
The junior party argues that the appropriate time
period to consider is from the retirement of the PX-10
embodiment to the filing of the Rydell application Serial No.
08/213,671 that matured into the Rydell Patent No. 5,352,222.
This time period is about 25 months. We agree that the 14
structures of the embodiment of PX-10 and the Rydell patent
are related in that in the Rydell patent it is the outer
14Even if 25 months were the appropriate time period, see
Latimer v. Wetmore, 231 USPQ 131, 136 (Bd. Pat. App. & Int.
1986)(unexplained hiatus in activity of 25 months enough to
raise inference of abandonment, suppression or concealment).
28
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