Interference No. 104,192
Cragg v. Martin v. Fogarty
position. Instead, Fogarty stated that “[t]he same would
apply to the Count of the present interference and proposed
Count F-2 [for the additional interference].”
In summary, according to Fogarty, because its claim 27
was pending within the critical one-year period of 35 U.S.C. §
135(b) and because claim 27 includes every feature of Martin’s
dependent claim 2, and therefore Martin’s independent claim 1,
Fogarty was claiming substantially the same invention as
Martin’s claim 1 within the critical one-year period of 35
U.S.C. § 135(b). We reject Fogarty’s argument, because it
regards as irrelevant whether the additional feature added by
Martin’s dependent claim 2 renders Martin’s claim 2 patentably
distinct and separaetly patentable from Martin’s claim 1. If
it is, as it apparently is so based on the examiner’s Rule
1.609(b) submission, a position Fogarty has not disputed and
in fact urged as similarly true with the count in this
interference as compared to the proposed count (see Fogarty’s
preliminary motion 8, Section 7 on page 9), then Fogarty
cannot be deemed as claiming substantially the same invention
as Martin’s claim 1 by way of having a claim the same as
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