affirmatively dedicated the claims of their patent to the public. Ondeyka has a continuing
interest in ensuring that this subject matter is fully accessible to all members of the
public, including Ondeyka. Due to the unique circumstances presented by this case there
exists an extraordinary situation which requires a waiver of the provisions of 37 C.F.R. §
1.291 to the extent that they would preclude full participation by Ondeyka in any protest
in the Shelley application and further to the extent that Ondeyka should be permitted to
fully participate in proceedings before the Primary Examiner and before the Board, if an
appeal is taken.
(Paper No. 13, p. 3).
Ondeyka’s request to file motions attacking Shelley’s accorded priority benefit and
patentability is denied. Specifically, the Board lacks subject matter jurisdiction to resolve
priority of invention or patentability in this interference. Moreover, as to Ondeyka’s request to
fully participate in the prosecution of Shelley’s application:
It is well-settled that an individual does not have a right to intervene in the
prosecution of a particular application to prevent issuance by the Patent and
Trademark Office of a patent sought by another. Animal Legal Defense Fund v.
Quigg, 932 F.2d 920, 930, 18 USPQ2d 1677, 1692 (Fed. Cir. 1991); Godtfredsen
v. Banner, 503 F. Supp. 642, 646, 207 USPQ 202, 207 (D.D.C. 1980) (individual
lacks standing to challenge a decision by PTO to issue a patent to another).
Petrie, 21 USPQ2d at 2013. Our decision, however, is without prejudice to Ondeyka’s rights
under the protest provisions of 37 CFR § 1.291.
In light of our decision today, the conference call set for 10:00 am on July 25, 2001 is
cancelled.
C. Order
Upon consideration of the record, and for the reasons given, it is:
ORDERED that the interference is TERMINATED.
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