Interference No. 104,192
Cragg v. Martin v. Fogarty
subject matter as that of another claim can be regarded, at
the same time, as claiming the same or substantially the same
invention as that other claim. Party Cragg should note that
Martin’s claim 2 can be separately patentable and patentably
distinct from Martin’s claim 1 even though it depends from
claim 1 and undoubtedly includes every limitation of claim 1.
Because it is important that we fully address Fogarty’s
arguments, we reproduce portions of Fogarty’s brief below (Br.
at 7-8):
Fogarty responded to Cragg’s assertion of
noncompliance with 35 USC § 135(b) by noting that
the determination under the statute is:
[W]hether the claim which was pending had
all the material limitations of the patent
claim. In re Schutte, 244 F.2d 323, 113
USPQ 537 (CCPA 1981). If the pending
claims had all the material limitations
there is compliance with the statute even
if different language is employed. [Fogarty
Reply, p. 5, original italics]
This principle of law has been applied for at
least half a century, as is apparent from the
authorities cited in the last two paragraphs on page
5 of Fogarty’s Reply, i.e., Ex parte Bowen, 80 USPQ
106 (Bd. App. 1947), Stalego v. Heymes, supra, Olin
v. Duerr, supra, and In re Schutte, supra.
The decision adopted Cragg’s argument but with
one possible exception did not address (nor
acknowledge) the precedents cited by Fogarty.
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