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A patent applicant bears the burden of establishing “reduction to practice prior to the effective date of the reference, or conception of the invention prior to the effective date of the reference coupled with due diligence from prior to said date to a subsequent reduction to practice or to the filing of the application.” 37 C. The Court agreed with the Board that Applicants’ exhibits were “not self-explanatory;” they provided no specific dates or acts tied to elements of the claims.
In addition, 57 months of time was unaccounted for in Applicants’ attempt to show due diligence.
During prosecution, the Examiner rejected the claims as obvious in view of U. After unsuccessfully attempting to distinguish the ‘560 reference, Applicants submitted a Rule 131 Declaration to “swear behind” the ‘560 reference and remove it as prior art.
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6,030,384, had failed to antedate a prior art reference because PST had not proven that the inventor of the ‘384 patent was reasonably diligent in reducing the invention to practice, and (ii) that the reference as prior art rendered the claims at issue to be anticipated or obvious. As noted by the Court, the issue of whether a patent antedates a reference is a question of law based on subsidiary findings of fact, and determinations of diligence, which depend on the factual record, are reviewed for support by substantial evidence. In addition, the Court reiterated that, “[a]n inventor’s testimony regarding his reasonable diligence must be corroborated by evidence” and that “corroborating evidence is considered ‘as a whole’ under a rule of reason.” . The Court described the underlying point of a proper diligence analysis in this way: “In determining whether an invention antedates another, the point of the diligence analysis is not to scour the patent owner’s corroborating evidence in search of intervals of time where the patent owner has failed to substantiate some sort of activity. The Dissent was likewise troubled by the Board’s treatment of two of three identified gaps of alleged inactivity, but would have found substantial evidence to uphold the Board’s decision based on the sufficiency of the Board’s treatment of one other gap of inactivity, which it would have found dispositive.
Reduction to practice may be constructive and satisfied through filing a patent application. In this regard, the Dissent believed the Board had not imposed too stringent a standard and commented that the Court’s cases have phrased the diligence test in a variety of terms including “reasonably continuous diligence,” “continuity of activity which constitutes reasonable diligence,” “continuously or reasonably diligent,” “continuous exercise of reasonable diligence,” etc.
The first prototype was then manufactured and sent to Patent Owner by the third party months prior to the date of the prior art references relied upon in this challenge.
There were no design changes in taking the prototype to the present day commercial model. Patent Owner, assuming conception was established by photographs of the prototype and business records, argued that reduction to practice was achieved prior to the date of the prior art, as evidenced by several commercial product description documents which antedate the prior art by a few months. Petitioner responded by rebutting Patent Owner’s argument the doctrine of inurement applied (that acts by others working explicitly or implicitly at the inventor’s request will inure to the inventor’s benefit).