Appeal No. 1997-2246
Application 08/353,572
assertion of diligence is not directed to a period commencing
from a time “prior” to September 12, 1988.
The appellants’ reply further states:
One of the exhibits that was submitted was:
Exhibit A5: a filed test report prepared prior to
September 12, 1988 which reports on tests performed
prior to September 12, 1988 of a system which
incorporates the subject invention[“].
The examiner in his supplemental examiner’s answer (Paper No.
24) correctly notes on page 5 thereof that tests conducted
prior to September 12, 1988 cannot provide evidence of
diligence from September 12, 1988 to March 16, 1989.
Moreover, the appellants’ reply does not address how long
prior to September 12, 1988 were the tests performed.
The examiner further found that the appellants have not
demonstrated any actual reduction to practice of the claimed
invention subsequent to the effective filing date of the
Schwendeman reference (Paper No. 21 at page 3). The
appellants dispute that finding (Reply Point 5 at pages 2-3).
We need not and do not reach this issue, because we sustain
the examiner’s conclusion that the appellants have not shown
reasonable diligence from a time prior to the effective filing
date of the Schwendeman reference to the time of alleged
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