Appeal 2007-0525
Application 09/919,794
Appellants confuse the issue by stating that "the Applicant never
intended to show a reduction to practice prior to the effective date of the '265
[Blair] reference but rather conception of the invention prior to the effective
date of the reference coupled with due diligence from prior to the date to a
subsequent reduction to practice or to the filing of the application" (Br. 13;
Reply Br. 2 is identical except for a comma). Thus, Appellants argue that
they are not relying on actual reduction to practice before the Blair filing
date but then go on to argue that there was an actual reduction to practice
before the effective date of the reference and no diligence needs to be shown
(Br. 14). Appellants argue that there was a conception date of May 2000,
and the fact that there was only four months before the actual reduction to
practice by production "clearly proves diligent working as a four month
window from conception to reduction to practice in the form of an actual
production version of a washing machine is an incredibly short period of
time" (Br. 13). Diligence is not necessary when the actual reduction to
practice occurs before the date of the reference. While the arguments are
confusing, we nevertheless conclude that the affidavit antedates Blair.
The Examiner's sole reason for objection is that "the submitted
affidavit and exhibits does [sic] not clearly explain which facts or data
applicant is relying on to show completion of his or her invention prior to
the particular date" (Answer 6). However, the affidavit states that "[b]oth
the present invention and the interactive control system for a laundry
appliance as set forth in U.S. Patent No. 6,502,265 are owned by the same
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