Commissioner of Patents and Trademarks
Patent and Trademark Office (P.T.O.)
IN RE APPLICATION OF ROBERT LONARDO
Serial No. 399,365
August 6, 1990
*1 Filed: September 21, 1973
For: THERAPEUTIC LEG AND FOOT DEVICE
Zarley, McKee, Thomte, Voorhees & Sease
2400 Ruan Center
Des Moines, Iowa 50309
James E. Denny
Deputy Assistant Commissioner for Patents
ON PETITION
The above-identified
application ('365 application), naming Robert Lonardo as inventor, became
abandoned on March 8, 1974, for failure to file formal drawings within a
two-month period specified in an office communication dated January 7, 1974. On
November 21, 1988, Lonardo filed a petition to revive the '365 application
under 37 CFR § 1.137(a), which was
denied on April 18, 1989. On May 4, 1989, Lonardo filed a further petition to
revive the '365 application and a petition under 37 CFR § 1.183 to waive applicable rules, both of
which were denied on August 4, 1989.
Lonardo then filed suit
against the Commissioner in the United States District Court, Middle District
of Florida (Civil Action No. 89-1329-CIV-T- 13C), seeking a court order
directing the Commissioner to revive the abandoned '365 application. On May 4,
1990, the district court granted the Commissioner's unopposed motion for stay
and remand, and permitted the Patent and Trademark Office (PTO) three months to
consider recently discovered additional evidence which might lead to granting
of relief by the Commissioner. On June 1, 1990, Lonardo filed a renewed
petition to revive the abandoned '365 application.
Lonardo's renewed
petition to revive is GRANTED.
To revive an abandoned
patent application under 37 CFR §
1.137(a), the petitioner must establish that his application became
abandoned due to "unavoidable delay." Proper considerations include
the extent of diligence exhibited by the
petitioner himself and by his attorney, in connection with the delay for which
the application became abandoned and also with their respective efforts to
revive the abandoned application. The diligence of the attorney is relevant
because one is ordinarily bound by the acts of his attorney. See Link v. Wabash
R.R., 370 U.S. 626, 633-34, reh'g denied, 371 U.S. 873 (1962); Smith v.
Mossinghoff, 671 F.2d 533, 5 USPQ2d 1130 (D.C.Cir.1982); Haines v. Quigg, 673
F.Supp. 314, 5 USPQ2d 1130 (D.Ind.1987); Ex parte Stuckgold, 1903 Dec. Comm'r
Pat. 307, 308 (Comm'r Pat.1903).
In this decision, the
diligence of Lonardo is first considered, followed by that of his attorney, Max
Schwartz ("Schwartz"). If Schwartz had not been diligent, whether his
lack of diligence is excused by sickness or incapacity, or otherwise not
chargeable to Lonardo, is then considered.
Lonardo was diligent
*2 Mrs. Lonardo
persistently acted as Lonardo's agent for communicating with Schwartz, in
connection with Lonardo's invention. Accordingly, Mrs. Lonardo's acts on behalf
of Lonardo, and her knowledge of information obtained from Max Schwartz, are
imputed to Lonardo.
Nothing in the record
indicates that Lonardo was aware of the Examiner's communication dated January 7, 1974, which set
a two-month period for submission of formal drawings. Though Schwartz received
the office communication, he did not notify Lonardo of the outstanding
requirement, nor did he submit formal drawings within the stated two-month
period. Unless Lonardo should have known that Schwartz could not be trusted
with prosecution of the '365 application, Lonardo could not be reasonably
expected to take actions which would have avoided the abandonment which occurred.
The facts do not show that Lonardo should have known that Schwartz was
professionally incompetent or otherwise unreliable. Consequently, it cannot be
reasonably said that Lonardo contributed to the abandonment of the '365
application through his own lack of diligence.
The record also indicates
that Lonardo was not less than diligent from the time of abandonment of the
'365 application on March 8, 1974, to the time of filing of the substitute
application on June 6, 1975, in not knowing that the '365 application had
become abandoned. Lonardo suffered a heart attack in April of 1974, for which
he needed the remainder of that year to recuperate. Through his wife, Lonardo
attempted to contact Schwartz on numerous occasions in early 1975. Though Mrs.
Lonardo had difficulty contacting Schwartz, she did manage to reach him by
telephone on at least two occasions, once on March 24, 1975, and another time
on April 1, 1975.
In the telephone
conversation of March 24, 1975, Schwartz said he had been ill, apologized for neglecting his work, and
stated that he would send a letter to Washington (presumably the PTO) to
explain that he had been ill. In a note of even date with that telephone
conversation, Mrs. Lonardo sent Schwartz a request for a copy of the letter Schwartz
intended to send to Washington. In the telephone conversation of April 1, 1975,
Schwartz assured Mrs. Lonardo that everything was fine and a patent would be
issued momentarily. The second conversation was followed by another note from
Mrs. Lonardo to Schwartz which urged Schwartz to call as soon as he had news
about the patent to be issued. Those facts indicate that Lonardo was concerned
about progress of the '365 application, made multiple inquiries to Schwartz,
and was assured by Schwartz that all was well and there was no need to worry.
Lonardo was not less than diligent.
Lonardo never followed up
on his request of March 24, 1975, asking Schwartz to send a copy of the letter
to Washington. That inaction may appear to reflect lack of diligence. However,
an unfulfilled request for the copy reflects more, not less, diligence than not
having made the request at all. Also, Schwartz's further assurance of April 1,
1975, obviated any pressing need for the copy. Lonardo already knew the
intended content of the letter, i.e., that Schwartz would explain that he had
been ill; Lonardo's main concern was whether the application would progress
toward issuance. Schwartz's representations to Mrs. Lonardo on April 1, 1975,
that all was well and the patent would issue momentarily
gave Lonardo the assurance he needed. In that circumstance, a physical copy of
the letter no longer has meaningful significance. Accordingly, Lonardo cannot
be faulted for not further pursuing a copy of the letter Schwartz purported to
be sending to Washington.
*3 In May 1975,
instead of receiving a copy of Schwartz's alleged letter to Washington, Lonardo
received from Schwartz a substitute application. Lonardo considered the various
applications, whether a continuation-in-part (the '365 application was itself a
continuation-in-art application of an earlier application) or a substitute, to
be one single application process for obtaining a patent on his invention. To
Lonardo, the substitute application was simply one other submission which was
necessary to secure the issuance of a patent for his invention. From that
perspective, the substitute application does not give notice to Lonardo that
something had gone wrong in the application process.
Lonardo's not confronting
Schwartz on why Schwartz sent a substitute application to be executed rather
than a copy of the purported letter to Washington should not work toward
Lonardo's detriment. The substitute application reflects further efforts
expended by Schwartz to secure a patent for Lonardo's invention; Lonardo had
insufficient basis to doubt its propriety. It cannot be reasonably said that
Lonardo should have preferred to receive a copy of the purported letter to
Washington, rather than the substitute application;
while the former is intended as an explanation of Schwartz's illness, the
latter represents a work product which brought Lonardo closer toward obtaining
a patent. From Lonardo's perspective, the '365 application was being taken care
of and was advancing toward issuance; whether he received a copy of Schwartz's
letter to Washington, and even whether Schwartz had sent such a letter, are
relatively inconsequential in that circumstance. Thus, Lonardo exhibited ample
diligence toward securing issuance of a patent for his invention by promptly
executing the substitute application on May 16, 1975.
Lonardo first learned of
the abandoned status of the '365 application on September 20, 1988, from
opposing counsel in a patent infringement action involving the patent which
issued from the substitute application. For the period from the execution of
the substitute application on May 16, 1975, to September 20, 1988, the record
shows no reason for Lonardo to question the status of the '365 application.
From Lonardo's perspective, there was a single patent application process which
resulted in the issuance of the patent; whatever applications were involved in
that process have merged into the resulting patent. It cannot be said that
Lonardo was not diligent in the period from May 16, 1975, to September 20,
1988, in connection with not knowing that the '365 application had been
abandoned.
Lonardo filed the first
petition to revive the '365 application on November 21, 1988. Though two months
have passed from the time when he first learned that the '365 application had gone abandoned,
that does not constitute excessive delay in light of the need to gather facts
relating to events of more than 14 years ago. Lonardo was not less than
diligent in seeking to revive the '365 application, once the abandoned status
of the application was made known to him on September 20, 1988.
*4 Also, based on
this record, Lonardo had no reason not to retain Schwartz as his attorney or to
rely on Schwartz throughout the prosecution of the '365 application. Though we
find Schwartz to be unable to perform his responsibilities after April 1973, as
discussed below, Lonardo did not know that and we cannot say that Lonardo
should have known.
For the foregoing
reasons, Lonardo's own conduct cannot be regarded as less than diligent and
thus precluding him from establishing unavoidable delay under 37 CFR § 1.137(a).
Schwartz was not diligent
Schwartz received the
office communication dated January 7, 1974, which set a two-month period for
submission of formal drawings. Though Schwartz's status letter of April 15,
1974, referred to a prior request from Schwartz for the Examiner to order the
transfer of formal drawings from an abandoned parent application, it did not
indicate when the request was made nor whether the Examiner had agreed to take such action.
Indeed, the last paragraph of the letter suggested that no agreement had been
reached with the Examiner, in stating: "[p]lease advise whether an action
will be forthcoming in accordance with the above [pending request for the
Examiner to order the transfer of formal drawings from the parent
application]." Because formal drawings were not filed by March 7, 1974,
the '365 application became abandoned. On this record, Schwartz had not been
diligent, and his lack of diligence caused the abandonment of the '365
application.
Though a patent office
communication dated May 2, 1984, was sent to Schwartz, which noted that the
'365 application had become abandoned, Schwartz's file for the '365 application
does not contain that official communication. Nevertheless, sometime between
April 15, 1974, and May 1975, Schwartz became aware of the abandoned status of
the '365 application; that fact is inferred from his preparing a
"substitute application" for Lonardo's execution in May 1975. Upon
learning that the '365 application had become abandoned, Schwartz should have
taken steps to revive the application; he should have known that the substitute
application would not be entitled to the benefit of the '365 application's
filing date. For the entire period from when he first learned of the abandoned
status of the '365 application to his death in December 31, 1980, Schwartz made
no attempt to revive the '365 application; he was less than diligent in that
regard.
Not charging Schwartz's failure to revive the
application to Lonardo
It is an established
principle that the neglect or exercise of judgment of an attorney is chargeable
to his client, and thus the client would have to suffer the consequences of his
attorney's conduct. The rationale, as articulated in Link v. Wabash R.R., 370
U.S. 626, 633-34 (1962), is that because the client voluntarily chose his own
representative, he cannot seek to avoid the consequences or acts of this freely
selected agent. The Court stated, id. at 634 n. 10, that if the attorney's
conduct falls substantially below what is reasonable under the circumstances,
the client's remedy is a malpractice suit against the attorney.
*5 In Link, the
district court notified counsel for each side of the scheduling of a pretrial
conference on October 12, 1960, at 1 p.m. On the morning of the scheduled date,
plaintiff's counsel telephoned the courthouse for the judge, and was informed
that the judge was on the bench. Plaintiff's counsel then left this message for
the judge:
"that he [counsel]
was busy preparing papers to file with the [Indiana] Supreme Court," that
"he wasn't actually engaged in argument and that he couldn't be here by
1:00 o'clock, but he would be here either Thursday afternoon [October 13] or
any time Friday [October 14] if it [the pretrial conference] could be reset."
Id. at 628. After
plaintiff's counsel failed to attend the pretrial conference, the district
court, upon review of the history of the case, dismissed the action for
counsel's failure to appear for pretrial conference and for failure to
prosecute. The Court of Appeals affirmed the district court. The Supreme Court
in Link recognized that the review in that case involved the propriety of the
district court's dismissal of the action under Federal Rules of Civil Procedure
41(b), 370 U.S. at 630, and not any refusal by the district court to grant
plaintiff's request for relief from judgment under Rule 60(b). In particular,
the Court stated: "[p]etitioner never sought to avail himself of the
escape hatch provided by Rule 60(b)," id. at 632, and expressly left open
the question whether the district court would have abused its discretion had it
rejected a motion under Rule 60(b). Id. at 635.
In the context of relief
from judgment under Rule 60(b), some courts have not broadly applied Link's
rule that an attorney's conduct is chargeable to his client, when the conduct
is deemed to involve gross-negligence rather than ordinary neglect, e.g.,
Boughner v. Secretary of Health, Education and Welfare, 572 F.2d 976, 978 (3rd
Cir.1978); L.P. Steuart, Inc., v. Matthews, 329 F.2d 234, 235 (D.C.Cir.1964),
cert. denied, 379 U.S. 824 (1964), or simply when a default judgment is due to
counsel's neglect. Jackson v. Beech, 636 F.2d 831, 837 (D.C.Cir.1980); see also
Carter v. Albert Einstein Medical Center,
804 F.2d 805 (3rd Cir.1986) (vacating default judgment upon review of denial of
relief under Rule 60(b), without classifying counsel's negligence as either
ordinary or gross). Lonardo has not identified any decision of the Commissioner
which distinguished gross-negligence from ordinary neglect when deciding
whether to charge the conduct of an applicant's attorney to the applicant. But
whether such a distinction is proper need not be decided here, because we cannot
charge Schwartz's conduct to Lonardo for a different reason, i.e., attorney's
intentional deception of his client.
*6 When an
attorney intentionally conceals a mistake he has made, thus depriving the
client of a viable opportunity to cure the consequences of the attorney's
error, the situation is not governed by the stated rule in Link for charging
the attorney's mistake to his client. See Jackson v. Washington Monthly Co.,
569 F.2d 119, 122 n. 18 (D.C.Cir.1977):
The gross-neglect rule
of L.P. Steuart has been criticized as discordant with Link. 7 J. Moore,
Federal Practice ¶ 60.27[2], at 369-370
n. 47 (2d ed.1975); see United States v. Cirami, 535 F.2d 736, 740-741 (2d
Cir.1976). But even if that were so, an attorney's deception of a blameless
client would survive as a basis for relief under Rule 60(b)(6). See 7 J. Moore,
supra, ¶ 60.-27[2], at 368 n. 44. When
a client does not knowingly and freely acquiesce in his attorney's neglectful
conduct, but instead is misled into believing that the attorney is industrious,
dismissal is not only a harsh step but one
for which the circumstances provide little support for an agency theory as a
rationale. Cf. Thane Lumber Co. v. J.L. Metz Furniture Co., 12 F.2d 701, 703
(8th Cir.1926); Chamberlain v. Amalgamated Sugar Co., 42 Idaho 604, 247 P. 12,
14 (1926).
United States v. Cirami,
563 F.2d 26 (2d Cir.1977), involved a situation in which the district court's
denial of relief under Rule 60(b)(6) was reversed on the basis that the
attorney's failure leading to dismissal of the action was demonstrated to be
due to mental illness. That decision has been broadly interpreted by at least
one district court as representing the view that any counsel's conduct of more
than ordinary neglect or gross-negligence should not be charged to his client
in the context of a request for relief under Federal Rules of Civil Procedure
Rule 60(b)(6). As stated in DeBonavena v. Conforte, 88 F.R.D. 710, 712-13
(D.Nev.1981):
This Court views the
legal propositions set forth in the Cerami cases as not necessarily limiting
relief to those cases where there is mental illness. It seems that the
philosophical basis of Cirami is somewhat broader. The essential question in
the view of this Court is whether counsel's inaction was due to something more
than negligence or neglect.
Sometime between April
15, 1974 and May of 1975, Schwartz must have learned that the '365 application
had gone abandoned, because he prepared an identical substitute application and
sent it to Lonardo in May 1975, to be executed, and filed the substitute application on June 6,
1975. The only reasonable inference which can be drawn from that circumstance
is that Schwartz was aware the '365 application had become abandoned.
Furthermore, at no time did he inform Lonardo of the abandoned status of the
'365 application, despite Mrs. Lonardo's inquiries about the status of the
application. On this record, it is reasonable to conclude that Schwartz
knowingly concealed the abandonment of the '365 application from Lonardo, and
covered up the abandonment by filing and prosecuting the substitute application
as though it were the '365 application. His efforts in concealment were so
successful that no one discovered the abandonment of the '365 application until
more than fourteen years later in an infringement suit involving the patent
which issued from the substitute application.
*7 For the
foregoing reasons, Schwartz's non-diligence in failing to have the abandoned
application revived cannot be charged to Lonardo.
Initial abandonment was due to Schwartz's
illness
This case involves
factual circumstance which existed in early 1974, in the two months immediately
preceding March 8, 1974, in which Schwartz should have filed a response in the
'365 application. Sixteen years have passed since 1974, and much evidence which
could have been available at that time are not available today. Nevertheless, the record can
support a finding that Schwartz's ability to perform his responsibilities as a
patent attorney was impaired during the period in question. Though the record
might also support a contrary finding, that contrary finding is less plausible.
Rather, Schwartz's health was so precarious after April 1973 that his failure
to file a response in the '365 application between January 7, 1974, and March
7, 1974, was due at least in part to illness. Consequently, his lack of
diligence in failing to respond to the office action is excused within the
meaning of unavoidable delay under 35 U.S.C. §
133.
In 1973, Dr. Ezra Sharp
had been Schwartz's treating physician for many years. According to Dr. Sharp's
testimony, Schwartz considered himself well- versed in medicine, and rarely
sought professional medical advice because he often made his own diagnosis and
treated himself. Dr. Sharp testified that when Schwartz had his first heart
problem, Schwartz even refused to go to the hospital and had to be treated at
home as a result of which Dr. Sharp was deprived of opportunities to administer
follow-up treatment.
Based on Dr. Sharp's testimony,
we find that Schwartz was not an ordinary person insofar as the need to
obtainprofessional medical assistance is concerned. For instance, he apparently
was not likely to accept medical assistance until he had exhausted all means he
thought were appropriate to treat himself. Consequently, whenever Schwartz
would seek professional assistance, he was
likely to have needed that professional medical attention at a much earlier
time. Similarly, since he was not treated or seen by a physician, he might well
have been seriously ill and needed to be hospitalized. Schwartz's regard (or
lack thereof) for professional medical care was not ordinary.
Dr. Sharp testified that
he saw Schwartz as a patient on April 9, 1973, at which time an EKG revealed
evidence of a Myocardial Infarct which had resulted from a heart problem from
20 years ago. Thus, we know that Schwartz's heart condition had a tendency to
grow progressively worse. Also, Schwartz's state of health in April 1973 must
have been extremely bad, because if not, he was unlikely to have sought
professional medical attention. More importantly, because April 1973 was the
last time Dr. Sharp saw Schwartz, Schwartz did not receive any professional
follow-up treatment from Dr. Sharp; and there is no evidence of record that
Schwartz received professional follow-up medical attention from any other
physician. Presumably, after April 1973 and until his death in 1980, Schwartz
was acting as his own doctor, attempting cures by whatever means he considered
appropriate. Based in part on the following six factors, Schwartz's state of
health from April 1973 to when he died in 1980 at approximately 81 years of age
was extremely precarious:
*8 (1)
Schwartz's serious health condition in April 1973;
(2) Schwartz's heart
problem which worsened over time;
(3) Lack of
professional follow-up treatment after Dr. Sharp last saw Schwartz in April
1973;
(4) Schwartz's general
reluctance to seek professional medical attention;
(5) Schwartz's tendency
to make his own diagnosis and to treat himself;
(6) Schwartz's advanced
age.
In addition, Schwartz's
precarious state of health undermined his abilities to fulfill responsibilities
as a patent attorney. Other evidence directed to Schwartz's state of health of
record before the PTO is not to the contrary. Schwartz himself told Mrs.
Lonardo in the March 24, 1974, telephone conversation that he had been ill and
he had neglect his work. Mrs. Lonardo heard in 1974 from another attorney in
Rhode Island, Elliot Salter, that Schwartz had been ill "for
sometime." Leonard Michaelson, also an attorney in Rhode Island, testified
that Schwartz had had a heart attack ten years or so before his death.
Based on the findings
above, one would anticipate that if Schwartz continued his patent practice
following April 1973, he would begin to fail in his professional duties, and
that such failures will become more numerous as time went on. Indeed, the facts
discussed below are in accordance with that anticipation. In particular, with
regard to nine filed applications including the '365 application, Schwartz
failed in his responsibilities once in 1974, once in 1976, once in 1977, once
in 1978, thrice in 1979, and twice in 1980.
The prosecution history of seven other
applications prosecuted by Schwartz from the period of June 1976 to December
1980, are relevant. Those applications, in chronological order of the filing
date, are:
Serial No. Filing Date Patent No.
------------
----------- ------------
1. **** ****
(not issued)
2. 696,486
06/15/76 4,378,948
3. 852,082
11/16/77 4,356,793
4. **** **** (not issued)
5. D-949,812
10/10/78 D.269,300
6. D-949,813
10/10/78 D.268,619
7. D-19,460
03/12/79 4,545,378
Each of the
above-identified seven applications became abandoned sometime during
prosecution as a result of Schwartz's failure either to respond at all or to
respond timely to an office action. Applications 1 and 4 above are not specifically
identified because they have not issued as United States patents and thus have
confidential status under 35 U.S.C. §
122. Schwartz refiled applications 3, 5, and 6 in December 1980, even
though there were intervening sales in at least application 3.
*9 Application 1 became abandoned
because Schwartz did not respond to an office action dated October 21, 1977,
for which a response was due on December 21, 1977. Application 2 became
abandoned because Schwartz did not respond to an office action dated September
22, 1976, for which a response was due on December 22, 1976. Application 3
became abandoned because Schwartz did not respond to an office action dated
September 26, 1978, for which a response was due on December 26, 1978.
Application 4 became abandoned because Schwartz did not respond to an office
action dated March 27, 1980, for which a response was due on June 27, 1980.
Application 5 became abandoned because Schwartz did not respond to an office
action dated July 25, 1979, for which a response was due on August 25, 1979.
Application 6 became abandoned because Schwartz did not respond to an office
action dated June 4, 1979, for which a response was due on July 5, 1979.
Application 7 became abandoned because Schwartz filed a response on January 28,
1980, to an office action dated October 25, 1979, for which a response was due
on January 25, 1980.
An eighth application
prosecuted by Schwartz, serial number 912,385, filed on June 5, 1978, also
became abandoned as a result of Schwartz's failing to respond to an office
action dated October 25, 1978, for which a response was due on January 25,
1979. Schwartz succeeded in reviving the abandoned application under Rule 137
on the basis of a mistake in docketing the office action for response; his
petition to revive the application was granted on November 28, 1979. That application is now
issued as United States Patent No. 4,211,190.
After Schwartz's death,
petitions were filed in each of the above-listed seven applications to have
them revived. The respective petitions were followed by a consolidated petition
for revival of all seven applications. In all applications except for
applications 2 and 5, the initial petitions had already been denied when the
consolidated petition was filed. Subsequent to the filing of the consolidated
petition in each application, the petitions were granted and each application
was revived. In each decision granting respective petitions, the PTO attributed
Schwartz's failure to respond timely to his "inability to perform his responsibilities."
The seven applications
were revived mainly on the basis of the consolidated petition, which included
(1) a declaration of Dr. Ezra A. Sharp; and (2) a declaration of Herbert
Barlow, a patent attorney who took over several of Schwartz's on-going patent
matters after Schwartz's death. Incidentally, it is noted that the consolidated
petition misstated the filing date of application 1 as January 21, 1978, of
application 2 as December 22, 1976, and of application 7 as January 25, 1980.
In addition to Dr.
Sharp's testimony already discussed above, Dr. Sharp stated:
In recent years I have
had no doctor-patient relationship with Max Schwartz that would enable me to provide a
professional opinion as to his mental deterioration in recent years. However,
his senility would not be inconsistent with my prior observations of him during
those occasions when I was called upon to treat his heart problems.
*10 Mr. Barlow
stated that his law firm assumed the prosecution of a number of patent applications
which were formerly handled by Schwartz. His testimony recounted three
instances in which Schwartz had not filed completed United States patent
applications which should have been filed, and nine instances in which Schwartz
caused erroneously instructed foreign associates to drop the prosecution of
corresponding foreign applications. Mr. Barlow stated that the foreign
applications were filed "in the fall and early spring of 1978- 79."
He also stated that one of the three unfiled United States patent applications
included a signed declaration dated September of 1979; no dates for the other
two unfiled United States applications were noted.
As evidenced above,
Schwartz's course of professional failures subsequent to April 1973 was
progressively worse. The failures began in early 1974 and became more frequent
in the following years. Because Schwartz's state of health became precarious as
early as April 1973, there is no reason to isolate the year 1974 and treat it
differently from the later years. Accordingly, the initial abandonment of the
'365 application was due at least in part to Schwartz's illness and thus
excused within the meaning of unavoidable delay under 35 U.S.C. §
133. See e.g. In re Mattullath, 1912 Dec.Comm'r Pat. 490, 493
(App.D.C.1912); Ex parte Sellers, 1905 Dec.Comm'r Pat. 336 (Comm'r Pat.1905);
McDuffee v. Hestonville, 181 F. 503, 510-11 (E.D.Pa.1910).
Conclusion
For the foregoing reasons
and on this rather unusual set of facts, Lonardo has demonstrated unavoidable
delay within the meaning of 35 U.S.C. §
133, and the renewed petition under 37 CFR § 1.137(a) to revive the '365 application from abandonment is
granted.
17 U.S.P.Q.2d 1455
END OF DOCUMENT