Interference No. 104,192
Cragg v. Martin v. Fogarty
benefit application. Hunt v. Treppschuh, 523 F.2d
1386, 187 USPQ 426 (CCPA 1975). It is thus
inaccurate to speak of priority between applications
without reference to claims and/or a count.
(Emphasis in original.)
For the foregoing reasons, Cragg has shown no error in
the motion panel’s granting of Fogarty’s preliminary motion
12.
B. Fogarty’s Preliminary Motions 8 and 10
In a decision mailed February 11, 2000 (Paper No. 108),
the motions panel denied Fogarty’s preliminary motion 8 under
37 CFR § 1.633(e)(1) which sought to declare another
interference between proposed new claim 62 of an uninvolved
application 08/684,508 of Fogarty and claim 89 of Cragg’s
involved application 08/461,402, and claim 1 of Martin’s
involved Patent No. 5,575,817. The decision gave two grounds
for denying the preliminary motion:
(1) that the proposed new interference is barred
by 35 U.S.C. § 135(b) because no claim which is the
same or substantially the same as Martin’s
supposedly interfering patent claim 1 had been made
by Fogarty within the critical one year period of 35
U.S.C.
§ 135(b); and
(2) that Fogarty failed to demonstrate that
there is interference-in-fact between the allegedly
interfering claims.
Fogarty argues, first, that we misapplied the
- 30 -
Page: Previous 23 24 25 26 27 28 29 30 31 32 33 34 35 36 37 Next
Last modified: November 3, 2007