Interference No. 104,733
Page No. 22
4. Summary of the CCPA and Federal Circuit Opinions on the
Question of No Interference-in-Fact
An interference in fact involves interfering subject matter. As shown by the
above decisions, there is no interfering subject matter, and thus, no interference-in-fact
when the parties are claiming different patentable inventions. For example, there is no
interference-in-fact when it is demonstrated that a party's claims are no impediment to
the granting of an opponents claims. Case, 730 F.2d at 750, 221 USPQ at 200.
The cases analyzed above, Nitz, Aelony and Case and our interpretations
thereof are all consistent with the no interference-in-fact decisions in Almasi v. Strauss,
589 F.2d 523, 200 USPQ 511 (CCPA 1979), and Brailsford v. Lavet, 318 F.2d 942, 138
USPQ 28 (CCPA 1963) as well as the interference-in-fact decision in McCabe v.
Cramblet, 65 F.2d 459, 18 USPQ 71 (CCPA 1933).
B. The USPTO Rules and the Comments to the Rules Provide that No
Interference-in-Fact Exists for Patentably Distinct Inventions
The interference rules were revised in 1984 to implement the interference
provisions of the Patent Law Amendments Act of 1984 (Public Law 98-622). Notice of
Final Rule, Patent Interference Proceedings, 49 Fed. Reg. 48416 (Dec. 12, 1984). As
part of the rule revision, the Commissioner (now Director) promulgated several rules
regarding the existence of an interference-in-fact. For example, the Commissioner
promulgated 37 CFR Section 1.601 (j)(definition of an interference-in-fact), Section
1.601 (n)(definition of same and separate patentable inventions) and Section 1.633(b),
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