Interference No. 104,192
Cragg v. Martin v. Fogarty
view, if Fogarty cannot present a claim, then it cannot have
an interference based on that claim with another party,
whether that other party is an applicant or a patentee.
Fogarty’s claim 62 was presumed by the parties as being
for substantially the same invention as Martin’s patent claim
1. Because it was presented outside of the one year period
from the date of issuance of the Martin patent, and because
Fogarty can demonstrate no other claim which was pending prior
to the one year period and which was directed to substantially
the same invention as Martin’s claim 1, Fogarty’s claim 62 is
barred.
The fact that Martin’s patent claim 1 has been determined
unpatentable to Martin because of an adverse judgment in
Interference No. 104,083 does not help Fogarty. The language
of 35 U.S.C. § 135(b) refers to a claim for the same or
substantially the same subject matter as “a claim of an issued
patent” and does not purport to add the qualifications that
such a claim must remain valid, non-canceled, patentable, non-
disclaimed, and/or enforceable. We decline to read into
35 U.S.C. § 135(b) these conditions in the absence of a
showing by Fogarty of a clear legislative intent to that
- 60 -
Page: Previous 53 54 55 56 57 58 59 60 61 62 63 64 65 66 67 Next
Last modified: November 3, 2007