Interference No. 104,403
date if he can establish that he resumed activity before the senior party
entered the field and exercised diligence from the date of
the resumed activity to the filing of the patent application. Paulik, 760
F.2d at 1273, 226 USPQ at 225.
The junior party has argued (Opening Brief at page 27) that any
of the dates that Rosenthal showed the prototypes to a witness is a
date of renewed interests or activity. The last such date just prior to
the filing date of the senior party’s application is April 11, 1994.
The Federal Circuit stated in Paulik:
We hold that such resumed activity must be
considered as evidence of priority of
invention. Should Paulik demonstrate that
he had renewed activity on the invention
and that he proceeded diligently to filing his
patent application, starting before the
earliest date to which Rizkalla is entitled–all
in accordance with established principles of
interference practice– we hold that Paulik is
not prejudiced, by the fact that he had
reduced the invention to practice some
years earlier. (emphasis added).
In accordance with Paulik, if the senior party’s filing date is
utilized as the date the senior party entered the field, the junior party
must show that he resumed activity prior to April 13, 1994 and
proceeded diligently from that date until the patent application was filed
on January 18, 1995. We will now examine the junior party’s
activities between April 11, 1994 and January 18, 1995.
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