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On the other hand, antedating can also be used negatively.For example, since the strike price of executive stock options is based on the stock price that corresponds to the day of when these options are granted, the option grant date can be unethically antedated to a day in the past, where the stock's price was at a low for the benefit of the executives.Reasonable diligence for antedating a prior art reference requires only that the diligence be reasonably continuous, not that attention be continuous throughout the critical period in order to be reasonable.Here, for example, a few periods of unexplained inactivity were not found to automatically vanquish the patentee’s claim of reasonable diligence.
Later-filed design applications can be of particular strategic benefit in that the life of a design patent is not limited by the filing or priority date of the earlier-filed utility application.
During that period, thirteen days after the inventor received the initial draft application, the primary prior art reference published in Japan.
While the patentee stated that the inventor was generally busy and identified the dates he was able to devote to the application, there were several days in which the patentee was unable to identify any specific conflict that would have prevented the inventor from working on preparing the application for filing.
Samsung serves as a general reminder not to overlook the importance of design patents, it does not speak to the strategic advantage that can be gained when considering the interplay between design and utility patent application filings. Thus, where a design patent claims priority to a utility application, the term of a design patent issuing therefrom shifts further into the future, without relinquishing priority, as compared to a scenario where design and utility applications are concurrently filed.
Indeed, many practitioners separate design applications from utility applications even where they relate to the same product. In In re Mahurkar, the priority claim of a utility application to an earlier-filed design application was allowed based upon a finding that the drawings in the design application adequately described the claimed subject matter of the utility application in accordance with 35 U. However, although the filing of a design patent application claiming priority to a utility application is available at any time during the pendency of the utility application, there are limits to the practice as well.
The panel holds that the court erred in applying a "cost savings" methodology, rather than the gross profits methodology.