(Paper 3), the parties have notified the board of the abandoned
status of the Waterman application.
An interference may be declared between a pending
application and an unexpired patent when the Commissioner is of
the opinion that the application and patent claim the same
patentable invention. 35 U.S.C. § 135(a); 37 CFR § 1.606.
B. Discussion
The Patent Statute (35 U.S.C. § 135(a)) does not authorize
an interference between an abandoned application and an unexpired
patent.
Since the Waterman application was abandoned as of the date
the interference was declared, it follows that the board lacked
subject matter jurisdiction over the interference. Compare
Petrie v. Welsh, 21 USPQ2d 2012 (Bd. Pat. App. & Int. 1991)
(patent versus application interference terminated for lack of
subject matter jurisdiction where it was discovered patent had
expired prior to declaration of interference).
In light of the board's lack of subject matter jurisdiction
in this interference, and notwithstanding the ORDER entered 9
February 2000 (Paper 2), there will be no further evaluation of
the Rule 608(b) showing which has been presented by Waterman.
The board appreciates the prompt manner in which counsel
have called our attention to the abandoned status of the Waterman
application.
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Last modified: November 3, 2007