Interference No. 104,733
Page No. 18
486, 487 (CCPA 1977).
Before the Board, neither Aelony nor Arni took testimony. Rather, Aelony argued
that there was no interference-in-fact between the parties. Specifically, Aelony argued
that, for the purification method in dispute, cyclopentadiene was patentably distinct from
the eight materials described by Ami. Id. at 568, 192 USPQ at 488. The Board did not
agree. According to the Board, both parties carried out substantially the same process.
Moreover, the Board found that Aelony's patentable distinctiveness argument was
unsupported by the evidence. As such, the Board rejected Aelony's no interference-in
fact argument and awarded priority to senior party Ami. Id. at 568, 192 USPQ at 488.
In reviewing the merits of Aelony's appeal, the CCPA specifically rejected
Aelony's argument that there was no interference-in-fact. The CCPA agreed with the
Board "that the test of interference-in-fact is not whether two sets of claims overlap, but
whether they are patentably distinct from each other." Id. at 570, 192 USPQ at 490
(bold emphasis added). According to the CCPA, the law contemplates that "where
different inventive entities are concerned - that only one patent should issue for
inventions which are either identical to or not patentably distinct from each other." Id.
(bold emphasis added). The CCPA went on to state that "[m]oreover, we believe that
there is ample precedent from this court for framing the test of interference in fact in
terms of whether two sets of claims are patentably distinct from each other." Id. (bold
emphasis added).
On the facts presented, the CCPA determined that "both parties are claiming
the same inventive concept" and rejected Aelony's argument that there was no
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