Interference No. 103,732
stating that each party is entitled to its claims corresponding to the count. In response to
the notification, the party Silva et al. requested final hearing to review the decision granting
the motion. The party Silva filed a record; both parties filed briefs, and appeared, through
counsel, at final hearing.
The only issue before us is whether there is an interference-in-fact.
INTERFERENCE-IN-FACT
We hold that an interference-in-fact does not exist.
An APJ’s decision on a preliminary motion constitutes an interlocutory order.
37 CFR § 1.601(q). The interlocutory order is presumed to have been correct and the
party attacking the order, here the party Silva, has burden of showing error or abuse of
discretion on the part of the APJ. 37 CFR § 1.655(a); Gustavsson v. Valenti, 25 USPQ2d
1401, 1405-06, (Bd. Pat. App. & Int. 1991) and Suh v. Hoefle, 23 USPQ2d 1321, 1326
(Bd. Pat. App. & Int. 1991). An abuse of discretion occurs if the decision (i) is clearly
unreasonable, arbitrary, or fanciful; (ii) is based on an erroneous conclusion of law; (iii)
rests on clearly erroneous fact findings; or (iv) involves a record that contains no evidence
on which the APJ could rationally base his or her decision. Abrutyn v. Giovanniello, 15
F.3d 1048, 1050-51, 29 USPQ2d 1615, 1617 (Fed.Cir. 1994).
The test for interference-in-fact is set forth in 37 CFR § 1.601(n), which
provides that an invention "A" is a separate patentable invention with respect to invention
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