Interference No. 103,029
Goodrich, if they were in compliance with the agreement.19
With
the filing of the stipulations, however, Barnhouse had clear
evidence that Barnhouse and Goodrich had been the source of
the ECH/EO copolymer, providing for the first time evidence
supportive of a claim of derivation. GD¶¶7, 8.
Kipouras argues that where Kipouras obtained the
ECH/EO copolymer is irrelevant to the issue of derivation.
But conveying the samples to Borg-Warner and the subsequent
use of the composition thereof in the Federl patent, if
19 An interference before the Board is not a proper
forum to resolve contract disputes. Nonetheless, in an
instance where one party apparently has breached an agreement
to the detriment of the other party, the interest of justice
might rightly require that a belated showing or pleading be
declared timely. The procedures of the PTO should be used to
permit justice, rather than to thwart justice. Fleming, 181
USPQ at 763. Here, we are faced with the remarkable situation
that there is uncontroverted evidence of an agreement between
the parties not to analyze or otherwise use the samples except
for testing and evaluation. GD¶6. And there is a stipulation
that Goodrich was the source of the samples. Yet, Borg-Warner
filed a patent application before the expiration of the
agreement which disclosed the composition of the samples. It
is our view that justice requires the two amendments to the
Barnhouse preliminary statement.
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