the application was lengthy, or that the subject matter was
particularly difficult. Indeed, the final product, e.g. the
Chern patent is less than four pages in text (absent the
drawings). There is no testimony from any "Patent Department
Head" to testify that it would normally take so much time for an
inventor to review a patent application in this art.
Absent such an explanation, we can only come to the
conclusion that Chern has not sufficiently shown that it was
diligent during that time. The reasonable diligence standard
"balances the interest in rewarding and encouraging invention
with the public's interest in the earliest possible disclosure of
innovation." Griffith v. Kanamaru, 816 F.2d 624, 626, 2 USPQ2d
1361, 1362 (Fed. Cir. 1987). Here, Chern has failed to
sufficiently demonstrate that it was reasonably diligent such as
to provide the public with the earliest possible disclosure of
its invention. Where the first to conceive has failed to
demonstrate that it was reasonably diligent during the critical
period, there is no reason, or justificati-on, to allow it to
prevail over another who is the second to conceive but who has
made prompt disclosure by the filing of a patent application.
Our decision is consistent with the one in D'Amico V. Koike,
347 F.2d 867, 146 USPQ 132 (CCPA 1965), where an unexplained one
month period of time during the critical period was found to be
excessive. In D'Amico, Judge Rich, again speaking for the CCPA
stated that:
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