applicant, whether junior or senior, to prevent the wrongful
grant of a patent to his opponent.” Ewing v. Fowler Car Co.,
244 U.S. 1, 10-11 (1917).
Allowing a junior party who did not meet the requirements of
Rule 608(b) to continue in an interference contest would ignore
the meaning and purpose behind Rule 608(b) and the decision in
Kistler v. Weber. The intent of Rule 608(b) is to protect the
patentee from invalid attacks upon its patent; not to allow an
applicant to challenge the patentability of the patent when it
has no right to do so.
Estoppel
Sever additionally argues that because he relied on the
statements of Feldman, Glickman’s attorney, Sever did not earlier
file its application (Paper 20 at 10-11). According to Sever’s
declaration, Feldman told Sever that Glickman would not file an
application on the involved subject matter. Apparently, Sever
relied on this statement and also did not pursue the invention.
Sever allegedly filed its application only after Sever saw
Glickman’s patent on the Internet (Sever Dec., ¶¶ 17-18).
Sever’s argument appears to be based on a theory of common
law estoppel. Sever fails to direct us to precedent that
suggests that the board may decide issues of common law estoppel.
Further, Sever’s declaration is hearsay. There is no
corroborating witness that testified as to the conversation that
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