Interference No. 104,192
Cragg v. Martin v. Fogarty
plainly says.
Two new arguments have been raised for the first time by
party Cragg in its reply brief at final hearing, which should
have been raised, if at all, in its opposition to Fogarty’s
preliminary motion 12. The first new argument is this: That
the two European applications were filed by MINTEC SARL for an
invention “actually made” by Michael D. Dake and Andrew H.
Cragg, regardless of assignment, and that this should satisfy
the filing by assign or legal representative requirement of 35
U.S.C. § 119. The second new argument is raised by the last
sentence on page 10 of Cragg’s reply brief, which reads:
“There is no requirement either in Section 119 or in case law
that the assignment must have been perfected before the EP
applications were filed in order to rely on those applications
for priority purposes.” The statement implies that somehow
there was at least an obligation of assignment which only was
not perfected or formalized until after the filing of the
European applications, and that this should satisfy 35 U.S.C.
§ 119.
The two new arguments were not in Cragg’s opposition to
Fogarty’s preliminary motion 12, and still not in Cragg’s
request for reconsideration of the motion panel’s decision on
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