Interference No. 104,192
Cragg v. Martin v. Fogarty
effect. The operative word is “issued,” similar to the word
“born.” Just as a baby cannot be un-born, an issued claim
cannot become non-issued whatever its status becomes
subsequent to issuance.
The public’s interest is not harmed by applying 35 U.S.C.
§ 135(b) the way it is written and enacted by Congress.
Fogarty is also under a mistaken belief that it is prejudiced
by its not being successful with preliminary motion 8 to get
into an interference with Cragg who has a dominating claim.
Fogarty’s predicament arises from its not having established,
in connection with a proposed new interference involving
Cragg’s claim 89, interference-in-fact with respect to a
Fogarty claim that is not time barred under 35 U.S.C. §
135(b). Alternatively, if Fogarty believes that Cragg’s
dominating claim 89 and any Fogarty claim involved in this
interference define the same patentable subject matter,
Fogarty could have moved to broaden out the count in this
interference to the scope of Cragg’s claim 89 and to have
Cragg’s claim 89 designated as corresponding to the revised
new count.
Fogarty did not take such action in this case. On these
circumstances, that Cragg has a dominating claim not involved
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