Interference No. 104,192
Cragg v. Martin v. Fogarty
October 1998 when preliminary motions were filed in this
proceeding. We suppose that what Fogarty is arguing is that
had it known of the two-way analysis requirement at the time
it filed its preliminary motion 8, it could have tried to
demonstrate satisfaction of the two-way requirement. That is
true, but as was explained in our initial decision, Fogarty
has failed to explain why there is interference-in-fact, in
either direction, e.g., neither from Martin’s claim 1 or
Cragg’s claim 89 to Fogarty’s claim 62, nor from Fogarty’s
claim 62 to Martin’s claim 1 or Cragg’s claim 89.6
Note also that the declaration of an interference is a
discretionary matter. See Ewing v. Fowler Car Co., 244 U.S.
1, 10-11 (1917) (explicitly rejecting the assertion of an
applicant’s right to declaration of an interference). It is
not an abuse of discretion to not declare an interference
6The motion panel’s decision observed that Fogarty’s
position that Cragg’s claim 89 and Martin’s claim 1 are
unpatentable over prior art while Fogarty’s claim 62 is
patentable over that same prior art is contrary to the
position that Fogarty’s claim 62 defines the same patentable
invention as Cragg’s claim 89 and Martin’s claim 1. Fogarty’s
brief at final hearing points out that the motion panel
rejected Fogarty’s prior art argument and that Cragg has not
sought review of that issue. But at best the circumstance
pointed out by Cragg only eliminates an apparent
inconsistency. It does not demonstrate affirmatively that the
claims define the same patentable invention.
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