FOSTER et al. V. BANG et al. - Page 19




                                                                               Interference No. 104,733                  
                                                                                            Page No. 19                  
            interference-in-fact. Id. (bold emphasis added). In particular, the CCPA noted that                          
            both parties carried out the same process in which a conjugated diene material reacted                       
            with impurities according to the Diels-Alder reaction. Further, there was no dispute that                    
            the cyclopentadiene of Aelony and the eight conjugated dienes of Arni were all common                        
            Diels-Alderdienes. Id.                                                                                       
                   The decision in Aelony denied a motion for no interference-in-fact where two                          
            parties were claiming patentably indistinct inventions. Specifically, in deciding the                        
            question of no interference-in-fact, the CCPA focused its attention on whether or not the                    
            parties claims were patentably distinct from each other. Where the claims of the                             
            parties are not patentably distinct from each other, the parties are claiming the same                       
            inventive concept and it is understood that only one patent should issue.                                    


                                 3. Case v. CPC Intemational, Inc.                                                       
                   Case involved an appeal from a decision of a district court in a civil action under                   
            35 USC §146 upholding the award of priority to CPC International, Inc., ("CPC") in an                        
            interference proceeding in the USPTO. The subject matter in the interference was                             
            directed to polyether polyols that consisted essentially of oxyalkylated polyalcohols and                    
            oxyalkylated polysaccha rides. Case v. CPC Intl, Inc., 730 F.2d 745, 747, 221 USPQ                           
            196, 198 (Fed. Cir. 1984).                                                                                   
                   The interference was provoked by CPC. To provoke the interference, CPC                                
            copied Case's patented claims. Of note, Case's patented claims specified that an                             
            oxyalkylated polyalcohol was present in an amount of 10 to 95% by weight and that an                         







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