Appeal No. 1997-2246
Application 08/353,572
“The applicant has merely stated that he
was diligent from the time the Schwendeman
et al reference was filed (9/12/88) to the
alleged time of actual reduction to
practice (3/16/89)”
The above quoted statement is not correct. The
affidavit submitted states:
“The subject matter was conceived and
reduced to practice in the United States by
simulation prior to September 12, 1988.
Between September 12, 1988 and March 16,
1989 I was diligently working to reduce the
invention to actual practice.”
The above-quoted argument of the appellants is of no help to
their case. Reasonable diligence must commence from a time
just prior to the effective date of the Schwendeman reference.
37 CFR
§ 1.131. Insofar as the diligence requirement is concerned,
there has been no mischaracterization by the examiner of the
appellants’ statement. Rather, the examiner’s reference to
the filing date of the Schwendeman reference adds an
appropriate context to the date September 12, 1988. Also,
still, there is only an assertion of diligence by the
appellants, and the appellants have not pointed to specific
and detailed facts which support the assertion of diligence
during the critical period.
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