Interference No. 104,192
Cragg v. Martin v. Fogarty
Our view is consistent with the opinion of the Court of
Customs and Patent Appeals in Vogel v. Jones, 486 F.2d 1068,
1072, 179 USPQ 425, 428 (CCPA 1973), wherein the court
determined that a foreign application made by the assignee of
a U.S. applicant, on behalf of one other than the United
States inventor, is irrelevant to the rights of priority of
the U.S. inventor. The Vogel case concerns 35 U.S.C. § 119,
not 35 U.S.C. § 116 or § 120. Contrary to a suggestion by
party Cragg in its reply brief at final hearing, Vogel has not
been made outdated by
statutory amendments to 35 U.S.C. § 116 and § 120 in 1984.
The inventive entity may not always be identical between a
U.S. application as a whole and an ancestral corresponding
application in a foreign application. E.g., Reitz v. Inoue,
39 USPQ2d 1838, 1840) (Bd. Pat. App. & Int. 1996)(“the
proposition that the inventive entity must be the same in both
the foreign and the corresponding U.S. application in order to
obtain benefit can no longer be accepted, if it ever was, as a
hard and fast rule in view of the liberalization of the
requirements for filing a U.S. application as joint inventors
wrought by the 1984 amendment of 35 U.S.C. § 116.”). But with
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