Interference No. 104,733
Page No. 14
v. CPC International, Inc.,3 Aelony v. AMi,4 and Nitz v. Ehrenreich,' we review these
decisions prior to our review of the USPTO rules. Notice of Final Rules, 49 Fed. Reg.
48416, 48,421 (Dec. 12, 1984).
A. The Opinions of the Federal Circuit and the Court of Customs and
Patent Appeals ("CCPA")
1 . Nitz v. Ehrenreich
Nitz involved an appeal from the Board of Patent Interferences6 awarding priority
of invention to Ehrenreich. Specifically, the Board awarded priority of invention as to
two counts, counts 1 and 2, to Ehrenreich. Nitz appealed the decision arguing, among
other things, that there was no interference-in-fact as to either count.
The interference was provoked when senior party Ehrenreich copied, in modified
form, claims 3 and 13 of Nitz's U.S. Patent No. 3,552,533. The subject matter of the
two copied claims involved carbonized articles having a modifying agent to increase the
coefficient of friction of carbon. Of hote, count 1 required up to about 48 percent by
weight of a friction modifier and count 2 required carbonized layers of filamentary
materials.
During the Board proceeding, Nitz argued that the counts did not define common
'730 F.2d 745, 221 USPQ 196 (Fed. Cir. 1984).
4 547 F.2d 566,192 USPQ 486 (CCPA 1977).
5537 F.2d 539,190 USPQ 413 (CCPA 1976).
'The decision in Nitz occurred prior to the merger of the Board of Interferences
with the Board of Patent Appeals.
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