determination that there is no interference in fact, the
interference--at least as to the count and claims corresponding
to that count--is over. No judgment of priority can be entered,
because the Director cannot be of the opinion that claims of
different parties "interfere". In Nitz with respect to Count 1,
where no interference-in-fact was held to exist, the CCPA vacated
the board's award of priority. 537 at 545, 190 USPQ at 418.
Nothing in § 135(a), or the legislative history leading up to
patentability being an issue which could be considered in an
interference, converted an interference proceeding into a pre-
grant opposition where a patentee can freely "oppose" the grant
of a patent to an applicant where it turns out that there is no
interference-in-fact . Accordingly, it is our view that under
§ 135(a) we "may" decline to consider on its merits an issue of
patentability, albeit raised in an interference, when our
ultimate determination is that there is no interference-in-fact.
As applied to the facts of this case, we "may" properly exercise
discretion to decline to consider on its merits Livak Preliminary
Motion 1 and Livak Miscellaneous Motion 1 because at this point
Livak is nothing more than a third-party protester vis-a-vis Han
and a third-party traditionally has no standing to participate
before the USPTO in an inter partes opposition to the grant of a
patent to an applicant. Animal Legal Defense Fund and
Godtfredsen v. Banner, supra.
c.
- 17 -
Page: Previous 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 Next
Last modified: November 3, 2007