Interference No. 104,192
Cragg v. Martin v. Fogarty
In the motion panel’s initial decision (Paper No. 108,
pages 52-53), it was stated:
There is no indication anywhere by any party that
Fogarty’s uninvolved application 08/684,508 had a
claim drawn to substantially the same subject matter
as Martin’s claim 2. While Fogarty’s involved
application [08/463,836] in this interference
include claims which correspond to the count which
is Martin’s claim 2, that does not mean Fogarty’s
uninvolved application 08/684,508 has at any time
included a claim drawn to substantially the same
subject matter as Martin’s claim 2.
In its brief for final hearing, Fogarty argues that so
long as it was claiming the required subject matter in some
earlier application within one year of the issuance of the
Martin patent, it passes muster under 35 U.S.C. § 135(b).
Fogarty cites two decisions of the Court of Customs and Patent
Appeals, In re Schutte, 244 F.2d 323, 113 USPQ 537 (CCPA 1981)
and Corbett v. Chisholm, 568 F.2d 759, 196 USPQ 337 (CCPA
1977), two decisions of the Board of Patent Interferences,
Tezuka v. Wilson, 224 USPQ 1030, 1036 (Bd. Pat. Int. 1984),
Olin v. Duerr, 175 USPQ 707 (Bd. Pat. Int. 1972), and one
decision of the Board of Patent Appeals and Interferences,
Bowen v. Bihlmaier, 231 USPQ 662 (Bd. Pat. App. & Int. 1986),
in support of its view. Fogarty points out that its
uninvolved application 08/684,508 is a file wrapper
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