Interference No. 104,403
prototypes, the affidavit is not specific about what acts directed to the
building of prototypes took place on what date.
Rosenthal testifies that he met with Paul Cote on July 12, 1994,
but not that any activity on the perfection of the invention or
preparation of the patent application took place on that date (Rosenthal
Record page 38).
In addition, as noted above, the Rosenthal affidavit includes a
time gap between July 12, 1994 and January 18, 1995 where there is
no evidence of any specific activity. This is a fatal flaw in the junior
party’s case to establish diligence because a party must account for
the entire period during which diligence is required. Griffin v.
Kanamaru, 816 F.2d at 626, 2 USPQ2d at 1362 (Fed. Cir. 1987);
Gould v. Schawlow, 363 F.2d at 919, 150 USPQ at 643 (CCPA 1966).
For the foregoing reasons, it is our opinion that the junior party
has not established that he proceeded diligently from April 11, 1994, to
the filing of the patent application in January 18, 1995, nor that he
resumed activity on the invention prior to the entrance of the senior
party in the field.
The junior party has not adequately explained the delay of 2
years and 5 months from the reduction to practice on August 14, 1992
to the filing of the patent application on January 18, 1995, nor has it
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