Interference 103,482
date of Application 07/220,007, which issued as U.S. Patent
4,892,851, for the subject matter of proposed Counts 4 and 5
(Paper No. 61, p. 2, first full para.), because he dismissed
Ewen’s motion to substitute proposed Counts 4 and 5 for
original Count 1 in Ewen Responsive Motion No. 2 To Redefine
Under 37 CFR § 1.633(c) And (i)(Paper 20)(Paper No. 56).
However, because the APJ redeclared the interference
substituting new Count 2 for original Count 1 (Paper No. 58),
he evaluated Ewen’s motion to be accorded benefit of the July
15, 1988, filing date of Application 07/220,007 as for the
subject matter of substitute Count 2 (Paper No. 61, p. 2,
first full para.).
The APJ cited (Paper No. 61, p. 2, second full para.)
Hyatt v. Boone, 146 F.3d 1348, 1352, 47 USPQ2d 1128, 1130
(Fed. Cir. 1998)(footnotes omitted):
When a party to an interference seeks the benefit of
an earlier-filed United States patent application,
the earlier application must meet the requirements of
35 U.S.C. § 120 and 35 U.S.C. § 112[, para. 1,] . . . for
the subject matter of the count. The earlier application
must contain a written description of the subject matter
of the interference count, and must meet the enablement
requirement. Fiers v. Revel, 984 F.2d 1164, 1170, 25
USPQ2d
1601, 1606 (Fed. Cir. 1993)(section 112 paragraph 1 must
be
met by the earlier application).
27
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