Interference No. 104,696 Paper 65
Khavari v. Tang Page 5
[17) Khavari's specification contemplates vaccination [2001 at 21:63-25:53]. The "immune
response" is described as conferring immunity to a host of pathogens, including
pathogens that target systems other than the skin [2001 at 22:42-23:12].
Test, burden of proof, and focus
"No interference-in-fact" means that there is no interfering subject matter, that one party's
claim are no impediment to a patent for the other party's claims. The movant has the burden to
prove that the other party claims a different invention from its own. Case v. CPC hit'l, Inc.,
730 F.2d 745, 750, 22.1 USPQ 196, 200 (Fed. Cir. 1984); accord Nitz v. Ehrenreich, 537 F.2d
539, 190 USPQ 413 (CCPA 1976).' Since the movant has the burden of proof, we focus on the
limitations that the motion highlights as showing a difference. Cf. Gechter v. Davidson
116 F.3d 1454, 1460, 43 USPQ2d 1030, 1035 (Fed. Cir. 1997) (focusing on contested
limitations).
Khavari's motion
Khavari has focused on differences in the skin involved in the respective claims.
Specifically, Khavari has focused on (1) the presence of hair on the skin and (2) the absence of
chemical or mechanical irritants. Tang's claim does not recite either of these limitations.
Assuming these limitations are the only differences, their absence, as Khavari suggests, indicate
that invention claimed in Khavari's claim I is a species of the more general invention claimed in
Tang's claim 167. A species anticipates its genus. Eli Lilly & Co. v. Barr Labs., Inc., 251 F.3d
I Khavari cites Winter v. Fu'ita, 53 USPQ2d 1234 (BPAI 2000) and "Standard for Declaring a Patent
Interference", 65 Fed. Rej. 79,809 (USPTO 2000) as requiring a two-way test for showing the existence of an
interference-in-fact. Since Khavari (and Tang) are trying to establish no interference-in-fact, it is sufficient to show one
way distinctiveness. Aelony v. Ami, 547 F.2d 566, 570, 192 USPQ 486, 490 (CCPA 1977); Nitz, 537 F.2d at 543,
190 USPQ at 416-17.
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