Interference No. 104,192
Cragg v. Martin v. Fogarty
independent claim 1, that does not mean Fogarty had claimed
substantially the same invention as Martin’s claim 1.
Martin’s independent claim 1 formed the basis of the count in
related Interference No. 104,083. Martin’s dependent claim 2
forms the basis of the count in this interference (See Paper
No. 16). Martin’s claim 2 adds a feature which is not present
in Martin’s claim 1. Fogarty had notice that the examiner
regarded Martin’s claim 2 as patentably distinct from Martin’s
claim 1. On page 3 of the examiner’s Rule 1.609(b)
submission, it is stated:
Distinction between Counts 1 and 2.
The important feature of count 1 [the count in
Interference 104,083] is that the bifurcated
prosthesis has two limbs but only one limb extends
across the bifurcation and into the lumen of the
vessel. Count 2 [the count in this interference]
requires an additional stent to be added to the
short limb, thus making a two piece graft that
extends into both branches of the vessel. The count
2 is patentably distinct from count 1 for this
reason.
Moreover, on page 9 of Fogarty’s preliminary motion 8, Fogarty
expressly recognized that the USPTO has regarded the counts of
Interference No. 104,083 and this interference, represented by
Martin’s claims 1 and 2, as being directed to separately
patentable inventions. Fogarty did not challenge that
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