Interference No. 104,192
Cragg v. Martin v. Fogarty
In opposing Fogarty’s preliminary motion 8, Cragg never
asserted that any claim of Fogarty was unpatentable for
indefiniteness under 35 U.S.C. § 112, second paragraph. The
brief for final hearing is not an occasion to be raising such
issues for the first time. Accordingly, we decline to
entertain Cragg’s argument that claim 62 of Fogarty’s
uninvolved application is unpatentable under 35 U.S.C. § 112,
second paragraph.
The motion panel’s decision on preliminary motions (Paper
No. 108) stated that it was manifestly apparent based on the
entirety of the pleadings that claim 62 and not claim 63 of
Fogarty’s uninvolved application was the claim at issue in
connection with Fogarty’s motion to have an additional
interference declared. It further found that parties Cragg
and Martin would not be prejudiced by a recognition that
Fogarty’s motion concerned claim 62 of Fogarty’s uninvolved
application. While opposing Fogarty’s motion, Cragg asserted
that Fogarty’s claims 62 and 63 are unpatentable under 35
U.S.C. § 112, first paragraph, but meaningfully discussed only
the features of Fogarty’s claim 63. Because nothing
meaningful was presented with regard to Fogarty’s claim 62,
the decision on preliminary motions did not discuss Cragg’s
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