Interference No. 104,192
Cragg v. Martin v. Fogarty
EP94400284.9 and EP94401306.9. The motion for leave as well
as the preliminary motion 12 (Paper No. 113) were granted by a
panel consisting of administrative patent judges Schafer and
Lee (Paper No. 130). The decision on Fogarty’s preliminary
motion 12 was adhered to on reconsideration (Paper No. 138) by
a panel consisting of Senior Administrative Patent Judge
McKelvey, and Administrative Patent Judges Schafer and Lee.
This interference was re-declared in Paper No. 131 to change
the junior/senior status of parties Cragg and Fogarty, with
Cragg now being junior party.
Junior party Martin did not file a preliminary statement.
It has indicated to the administrative patent judge to which
this case was assigned that it did not want to participate in
this interference except to “ride along” for the possibility
that (1) the only interference-in-fact is determined to be
between parties Cragg and Martin (a Cragg contention), and (2)
that party Cragg will be deprived of its accorded benefit date
(a Fogarty contention) and cannot demonstrate a sufficiently
early date to prevail over Martin.
Because junior party Cragg filed no case-in-chief during
the priority phase of this proceeding, it was placed under an
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