involved an interference between (1) an application of Fiddes
versus (2) an application of Baird. While it is somewhat
difficult to determine from the opinion, it appears that Fiddes
claims 43-46, 50-54 and 57-69 and Baird claims 11-12 and 23-28
were designated as corresponding to a count. Thus, the noted
claims were "involved" in the interference within the meaning of
35 U.S.C. § 135(a).
Fiddes filed a preliminary motion seeking judgment against
Baird claims 11-21, 23-25 and 27 as being unpatentable under
35 U.S.C. §§ 102(b) and 103. 37 CFR § 1.633(a). Fiddes also
filed a preliminary motion seeking entry of a judgment of no
interference-in-fact. 37 CFR § 1.633(b).
Upon consideration of the Fiddes preliminary motion for
judgment based on the prior art, the board held that all of
Baird's claims were unpatentable except for Baird claims 26
and 28. The board then took up the issue of whether there was an
interference-in-fact. "We now turn to the parties' claims to
determine whether [the subject matter of] Fiddes' claims 43 to
46, 50 to 54 and 57 to 69 *** [is] new and nonobvious over [the
subject matter of] Baird's claims 11 to 21 and 23 to 28, assuming
that [the subject matter of] Baird's claims *** [is] prior with
respect to Fiddes' claims." 30 USPQ2d at 1485, col. 1. The
board held that there was no interference-in-fact.
The board considered patentability notwithstanding there was
no interference-in-fact. However, a close review of the facts
would show that the board properly exercised discretion to
- 20 -
Page: Previous 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 Next
Last modified: November 3, 2007