Interference No. 104,192
Cragg v. Martin v. Fogarty
patentee Martin and thus claim 1 of Martin is as good as
cancelled. According to Fogarty, the time bar under 35 U.S.C.
§ 135(b) is for protecting patentees from perpetually under
threat of an interference proceeding initiated by applicants.
Thus, Fogarty argues that because judgment has been entered
against Martin’s patent claim 1 in Interference No. 104,083,
protection for Martin under 35 U.S.C. § 135(b) insofar as
Martin’s claim 1 is concerned is moot and unnecessary.
Fogarty’s view is that in this circumstance, application of
the bar under 35 U.S.C. § 135(b) only protects another
applicant, i.e., party Cragg, whose claim 89 would be shielded
from a priority determination relative to Fogarty.
While 35 U.S.C. § 135(b) was primarily enacted to protect
patentees, the language of the statute is not such that only a
patentee may benefit from the bar. The statutory section is
written in terms of a bar on the presentation of a claim, not
as a bar on having an interference with a patentee. If an
applicant is time-barred by 35 U.S.C. § 135(b) from presenting
a certain claim, then it follows that the barred claim cannot
serve as the basis of an interference with respect to another
applicant whose claim for the same patentable invention is not
subject to the bar. Thus, if applicable, the bar under 35
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