Interference No. 104,192
Cragg v. Martin v. Fogarty
2. 35 U.S.C. § 135(b) Bar
There is no dispute that Fogarty’s amendment in its
uninvolved application 08/684,508, proposing to add claim 62
to provoke an interference with claim 89 of Cragg’s
application 08/461,402 and claim 1 of Martin’s Patent No.
5,575,817, is filed more than one year after the date of
issuance of Martin’s Patent No. 5,575,817. The question at
issue is whether Fogarty had another claim, drawn to the same
or substantially the same invention as Martin’s claim 1, that
was pending within one year subsequent to the date of issuance
of the Martin patent. If so, claim 62 is not barred. If not,
then claim 62 is barred.
In pertinent part, 35 U.S.C. § 135(b) states:
A claim which is the same as, or for the same or
substantially the same subject matter as, a claim of
an issued patent may not be made in any application
unless such a claim is made prior to one year from
the date on which the patent was granted.
Even though the new interference proposed by Fogarty
involves claim 1 of Martin’s patent, Fogarty attempted to
demonstrate that it had a claim drawn to substantially the
same subject matter as Martin’s claim 1 by showing that it was
claiming, within the critical one year period, the same
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