failed to sufficiently rebut Chern's prima facie showing.
Diligence
Chern need show diligence from a time prior to 9 December
1991, until its filing date of 6 March 1992, e.g. the "critical
period". 35 U.S.C. § 102(g). Chern submits evidence of events
that allegedly demonstrate that Chern was diligent during the
critical period (Finding 41). 1
There is at least one particular time period during the
critical period that is troublesome. Wen-Foo Chern testifies
that he received a draft of his '339 application on or about 10.
January 1991 (Finding 41(hh)). Wen-Foo Chern further testifies
that from 10 January to 4 February he reviewed the draft and
provided comments to Meza. There is evidence of a phone call
between Meza and Wen-Foo Chern that occurred on 24 January 1992
(Finding 41(jj)). Meza testifies that sometime prior to 13
February 1992, he received written comments from Wen-Foo Chern
regarding '339 (Finding 41(11)).
Based on the evidence presented by Chern, Chern has failed
to sufficiently demonstrate that it was diligent during at least
the time from 10 January 1992 until 13 February 1992. During at
least part of that time, Wen-Foo Chern states that he reviewed
the '339 draft application. Chern provides no convincing
explanation as to why it took Wen-Foo Chern approximately one
month to review the draft application and to żeturn it to M:--.
Absent a convincing explanation, we decline to speculate or make
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