Interference No. 101,981
We agree with Qadri that their statement in their
Preliminary Motions of March 14, 1989 (paper no. 39, p. 15) put
Beyers and the APJ on notice that a divisional application
directed to the restricted out method claims would be further
prosecuted. Although the APJ did not consent in writing to the
subsequent prosecution of the method claims, we do not see that
this was necessary. As is stated in the MPEP (2315.01):
Where an application involved in an interference includes, in
addition to the subject matter of the interference, a
separate and divisible invention, prosecution of the second
invention may be had during the pendency of the interference
by filing a divisional application for the second invention .
. . .
The only constraint is that, if the claims in the divisional
application are broader than the subject matter claimed in the
interfering application, a patent to the divisible claims may not
issue. MPEP § 2315.01. Beyers has not shown this to be the
case. For this reason, Qadri is not in violation of § 1.615.
Furthermore, Beyers is asking for relief that we cannot
grant. We have no authority to request Qadri to disclaim subject
matter of Qadri’s noninvolved patent. Our jurisdiction is
limited to those patents which are in interference and to claims
which correspond to the count. We do not have that situation
here and there is nothing on the record to show that Beyers moved
83
Page: Previous 74 75 76 77 78 79 80 81 82 83 84 85 86 87 88 Next
Last modified: November 3, 2007