Interference No. 104,192
Cragg v. Martin v. Fogarty
motion 12.
Cragg argues that Fogarty’s preliminary motion 12 was
based on the representation in Cragg’s preliminary statement
that Michael D. Dake was the inventor for the subject matter
of the count, and yet applicable precedent indicates that
preliminary statements can only be used as an effective
admission of the earliest or limiting date of invention
provable by the party. Cragg’s argument overlooks the 1984
changes to 35 U.S.C. § 116 and a corresponding change to 37
CFR § 1.622 regarding the content of preliminary statements.
Cragg’s argument is rejected.
There are many precedents, including the one cited by
Cragg, Dewey v. Lawton, 347 F.2d 629, 631, 146 USPQ 187, 188
(CCPA 1965), which set forth the law that the date alleged in
a party’s preliminary statement only constitutes a limiting
date. Thus, although a party may prove a date of invention
that is earlier or later than the alleged date, it cannot be
entitled to a date that is prior to the alleged date. Those
cases all focus on
the assertion of a date of invention and are not concerned
with any identification of inventorship in the preliminary
statement. Identification of inventorship did not become a
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