September 1992 and 29 October 1992 (Paper 272 at 42). Hill
relies on Shindelar v. Holdeman, 628 F.2d 1337, 207 USPQ 112
(CCPA 1980) for the proposition that three months is considered a
reasonable amount of time for preparing a patent application.
The facts here are distinguishable from those in Shindelar.
The issue in Shindelar was whether a party had suppressed or
concealed the invention after it had reduced the invention to
practice. Here, the issue is diligence towards reducing an
invention to practice, not whether an already reduced to practice
invention has been concealed or suppressed. Hill has failed to
discuss in any meaningful way why Shindelar applies to the issue
of diligence.
Even if Shindelar should be considered with respect to the
facts in this case, Shindelar does not stand for the proposition
that three months to prepare an application is per se reasonable,
when there is no evidence based on the record, to support a three
month preparation time. In Shindelar, there was evidence of acts
towards preparing the application. Here, there are none.
More relevant to the facts of this interference are D'Amico
v. Koike, 347 F.2d 867, 146 USPQ 132 (CCPA 1965) and Bey v.
Kollonitsch, 806 F.2d 1024, 1028, 231 USPQ 967, 970 (Fed. Cir.
1986). In D'Amico V. Koike, an unexplained one month period of
time during the critical period was found to be excessive. In
D'Amico, Judge Rich, speaking for the CCPA stated that:
37
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