directed to the same patentable invention as Rohrmann claim 5 if
it is assumed that the subject matter of Alt claim 101 is prior
art vis-a-vis Rohrmann.
We will further assume, without deciding,1 that the method
of making the metallocene set out in Alt claim 101 is the same as
the method called for by Rohrmann claim 5.
If the two assumptions are correct, then it can be said that
Alt has demonstrated that the subject matter of Alt claim 101
anticipates the subject matter of Rohrmann claim 5 and therefore
Rohrmann claim 5 is directed to the same patentable invention as
Alt claim 101. Superficially, it might be said that Alt complied
with Rule 637(c)(3) and therefore is entitled to relief. An
analysis of the statute, however, will show otherwise.
The rules should not be read in a vacuum. Rather, they
should be interpreted consistent with applicable statutory
provisions. Rohrmann correctly notes in its opposition that at
this time Alt cannot present a claim to a method of making a
metallocene, because Alt did not present such a claim within one
year after the date the Rohrmann patent issued.2 35 U.S.C.
§ 135(b). Hence, Rohrmann reasons that Alt should not be allowed
to indirectly involve Rohrmann claim 5 in the interference long
after the § 135(b) bar has expired. We agree. It is not enough
to obtain relief that Alt may have complied with the procedural
1 Rohrmann contests this assumption.
2 In this respect, we note that Alt has made no attempt to involve in this
interference Rohrmann claims 1-4 directed to metallocene compounds.
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