Interference No. 103,141 (6th Ed., Jan. 1995) is misplaced. The first sentence of the Example 16 states, “The PTO will . . . declare interferences where interfering patent and application claims are mutually exclusive provided the claims define the same patentable invention.” (Citations omitted, emphasis supplied). Indeed, Example 14, which defines the conditions of Example 16, specifically states that, “[b]enzene and toluene [the two mutually exclusive species of Example 16] define the same patentable invention.” Sawada has never established that the two species in question are the same patentable invention. Sawada argues that the junior party should not be penalized for disclosing both species in its involved application. Sawada Brief at 12. Sawada has not been so penalized. In fact, since the sintering with simultaneous or subsequent cross-section reduction species is not within the interference, Sawada has possession of this subject matter free and clear of any interference with Jin. This is the opposite of Sawada’s perceived penalty. Finally, we agree that a count should ideally be formulated to allow a party to rely on its best proofs. 18Page: Previous 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 NextLast modified: November 3, 2007