Interference No. 104,192
Cragg v. Martin v. Fogarty
was filed by (i) the individual now identified as
the inventor or (ii) on his behalf by his legal
representatives or assigns.
The statutory basis of Fogarty’s preliminary motion 12 is
35 U.S.C. § 119, which states, in pertinent part:
(a) An application for patent for an invention filed
in this country by any person who has, or whose
legal representatives or assigns have, previously
regularly filed an application for a patent for the
same invention in a foreign country which affords
similar privileges in the case of applications filed
in the United States or to citizens of the United
States, or in a WTO member country, shall have the
same effect as the same application would have if
filed in this country on the date on which the
application for patent for the same invention was
first filed in such foreign country, if the
application in this country is filed within twelve
months from the earliest date on which such foreign
application was filed; . . . . (Emphasis added.)
As the motion panel’s decision on reconsideration (Paper
No. 138) states on page 3, a statement with which we agree and
adopt herein:
We interpret the above-quoted “any person who
has, or whose legal representatives or assigns have”
language as meaning that the previously filed
foreign application must have been filed by the
person or one who was, at the time of filing of the
previously filed foreign application, already a
legal representative or assign of that person. This
view is necessary to ensure a link between the
presently involved application and the earlier filed
foreign application with respect to the particular
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