Interference 104,530
Jurgenson v. Dunfield
Section 135(b) of Title 35 states:
A claim which is the same as, or for the same or
substantially the same subject matter as, a claim of an
issued patent may not be made in any application unless
such a claim is made prior to one year from the date on
which the patent was granted.
This statute bars the declaration of an interference
under § 135(a) unless the claim is copied within one year of
the issuance of a patent to another. In re McGrew, 120 F.3d
1236, 1237, 43 USPQ2d 1632, 1634 (Fed. Cir. 1997) (§ 135(b)
is a statute of repose so that patentee is secure in his
property right).
There is a dispute as to whether Jurgenson, as the
moving party, must compare Dunfield’s involved claims with
Dunfield’s earlier claims, or whether Jurgenson must compare
Jurgenson’s involved claims with Dunfield’s earlier claims
(Findings 47-48). It is not necessary for us to determine
which comparison is correct. Both Jurgenson’s involved
claims and Dunfield’s involved claims include a microactuator
on a rigid region of a load beam (Findings 20-23). Thus, the
issue is whether Dunfield’s earlier claims include a
microactuator on a particular region of a load beam, i.e. on
the rigid region of a load beam.
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