Interference No. 104,192
Cragg v. Martin v. Fogarty
argues that there is no requirement in 37 CFR § 1.637 or
otherwise, in connection with a preliminary motion to declare
an additional interference, that the moving party has to
demonstrate the existence of an interference-in-fact between
the allegedly interfering claims.
1. Interference-In-Fact
According to Fogarty, it can find nothing in the
interference rules which requires that in order for a
preliminary motion to declare an additional interference to be
granted, the preliminary motion must establish or demonstrate
that an interference-in-fact exists between the claims sought
to be involved in the additional interference. While there
may be no express requirement, the decision on preliminary
motions (Paper No. 108) on page 53, lines 18-22, states that
the requirement is an implicit one:
Secondly, it is implicit that to demonstrate
entitlement to the declaration of an additional
interference as is requested in Fogarty’s motion,
Fogarty must demonstrate that there is interference-
in-fact between Goicoechea’s [Cragg after deleting
Goicoechea as a co-inventor] application claim 89
and claim 62 of Fogarty’s uninvolved application
08/684,508. (Emphasis added.)
Party Fogarty’s brief at final hearing does not explain
why it is not an implicit requirement that a motion to have an
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Last modified: November 3, 2007