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He also presented evidence that he submitted comments to his attorney about the initial draft on March 2, received questions from his attorney on March 4 and 12, participated in a conference with the attorney on March 16, and received a revised application on April 13.
He then testified that he again reviewed the draft prior to its filing on May 1.
In this case, Olympus America filed an IPR petition seeking to cancel claims of U. Patent 6,030,384 directed to a bipolar surgical device.
This clarified standard appears to ease the burden on a party seeking to prove diligence.
The evidence submitted is insufficient to establish a conception of the invention prior to the effective date of the  reference.
patent application publication of a pending or patented application that claims the rejected invention.
Camran Nezhat, was already in possession of a draft application he received from his patent attorney on January 28, 1998.
The application that issued as the ‘384 patent was filed on May 1, 1998. Nezhat testified that he was working approximately 80 hours per week at his medical practice and performing four to six surgeries each week.
Judge Schall particularly noted that Perfect Surgical offered no specific evidence (such as medical records or surgery dates) to excuse the lack of activity.
In his view, the PTAB properly applied the court’s precedent to find the evidence insufficient to allow Perfect Surgical to meet its burden.