Interference No. 104,192
Cragg v. Martin v. Fogarty
By this motion, Goicoechea [Cragg] alleges that
there is no interference-in-fact between its
involved application 08/461,402 and Fogarty’s
involved application 08/463,836. As is stated in 37
CFR § 1.601(j):
An interference-in-fact exists when at
least one claim of a party that is
designated to correspond to a count and at
least one claim of an opponent that is
designated to correspond to the count
define the same patentable invention.
In that regard, 37 CFR § 1.601(n) states:
Invention “A” is the same patentable
invention as an invention “B” when
invention “A” is the same as (35 U.S.C.
102) or is obvious (35 U.S.C. 103) in view
of invention “B” assuming invention “B” is
prior art with respect to invention “A”.
Invention “A” is a separate patentable
invention with respect to invention “B”
when invention “A” is new (35 U.S.C. 102)
and non-obvious (35 U.S.C. 103) in view of
invention “B” assuming invention “B” is
prior art with respect to invention “A”.
(Emphasis in original.)
Resolution of an interference-in-fact issue
involves a two-way patentability analysis. For
there to be an interference-in-fact, the parties
must each have at least one claim which collectively
satisfy the following: The claimed invention of
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