Interference 103,685
Riggins must prove that (1) it made a product or performed a
process that met all the limitations of any one of the claims
of Riggins’ involved application or any one of the claims of
Holsten’s involved application or any one of the claims of
Holsten’s patent to which Count 2 is alternatively directed, and
(2) it determined that that product or process would work for its
intended purpose. Riggins is not required to prove that it made
a product or performed a process that met all the limitations of
one or more of the claims of Riggins’ involved application.
Riggins may establish an actual reduction to practice of the
invention defined by Count 2 of this interference by proving that
it made a product or performed a process that met all the
limitations of an invention defined by any one of the claims of
Holsten’s involved application or any one of the claims of
Holsten’s patent. See Cooper v. Goldfarb, 240 F.3d 1378, 1382,
57 USPQ2d 1990, 1992 (Fed. Cir. 2001):
When two patent applications are directed to
the same invention, the Patent Office declares an
“interference” between the applications to determine
which applicant is entitled to priority of invention.
See 35 U.S.C. . . . § 135 . . . . The precise scope
of the interfering subject matter is defined by the
interference “count.” 37 C.F.R. § 1.601(f)(2000).
Priority is generally awarded to the applicant who
was first to reduce the invention to practice . . . .
37 CFR § 1.601(f)(2000) reads (emphasis added):
A count defines the interfering subject matter
between two or more applications or between one or
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