Interference 103,685
of any of Holsten’s claims corresponding to Count 2 is patentable
to Riggins is immaterial to our holding that Riggins was first to
invent the subject matter defined by Count 2. We repeat, the
interference count, which forms the basis for determining
priority of invention in an interference proceeding, need not
be patentable to either party to the interference. “[A] count
is a vehicle for contesting priority and may not necessarily be
allowable to a winning party or be proper under § 112 (e.g.
a phantom count). Hedgewick v. Akers, 497 F.2d 905, 909 n.6,
182 USPQ 167, 169 n.6 (CCPA 1974).” Hunt v. Treppschuh,
523 F.2d at 1389, 187 USPQ at 429.
The “count” . . . is merely the vehicle for contesting
priority which . . . effectively circumscribes the
interfering subject matter, thereby determining what
evidence will be regarded as relevant on the issue of
priority. The “count,” as distinguished from a party’s
“claim,” need not be patentable to either party . . . .
Squires v. Corbett, 560 F.2d at 433, 194 USPQ at 519.
At this point we will note that an interference is not about
who gets a patent. Rather, an interference settles the issue of
who does not get a patent. Cf. Cromlish v. D.Y., 57 USPQ2d 1318,
1319 (Bd. Pat. App. & Int. 2000):
Priority is not a basis for granting a patent to that
party; rather, it is the basis for denying patentability
to another party under 35 U.S.C. 102(g)(1).
Holsten has not argued that the corroborative evidence
Riggins has submitted of record in this interference
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