Interference No. 104,192
Cragg v. Martin v. Fogarty
interference declared must demonstrate that the claims said to
interfere with each other actually interfere with each other,
i.e., that there is interference-in-fact between the allegedly
interfering claims. Moreover, the very first sentence of 37
CFR § 1.637(a) is this: “A party filing a motion has the
burden of proof to show that it is entitled to the relief
sought in the motion.” (Emphasis added).
We decline to simply take a moving party’s word that one
of its claims interferes with one or more claims of other
parties. We reiterate our holding in the decision on
preliminary motions that it is an implicit requirement for a
preliminary motion to have another interference declared that
the motion must demonstrate that there is interference-in-fact
between the allegedly interfering claims. Fogarty’s brief at
final hearing does not address the point of “implicit”
requirement and thus has not shown that the motion panel was
erroneous.
Fogarty also asserts that in any event the Board’s two-
way interference-in-fact analysis follows the Trial Section’s
precedential decision in Winter v. Fujita, 53 USPQ2d 1234 (Bd.
Pat. App. & Int. 1999), but that was not the criteria in
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