Interference No. 104,436 Paper 98
Shyamala v. Hillman Page 25
leading to an involved application or patent. An attack on accorded benefit proceeds from the
benefit document itself (in a manner analogous to, but not identical with, attacking benefit under
35 U.S.C. 120). It does not require the sort of elaborate proofs customary in establishing an
actual reduction to practice (or conception, or diligence, or abandonment, suppression, and
concealment). Moreover, the constructive reduction to practice date is often a necessary element
in establishing diligence or abandonment, suppression, and concealment. Consequently, it is
precisely the sort of issue that is best pinned down during the preliminary motions phase. In any
case, that is where the interference rules have placed such attacks. It can hardly have been
irregular for the Board to follow its rules and regular procedure.
ORDER
Upon consideration of the briefs of the parties, it is:
ORDERED that judgment on priority as to Count 2 is awarded against junior party
Shyamala;
FURTHER ORDERED that Shyamala is not entitled to a patent containing claims 1-3, 4,
5, 6, 9, and 10 of its 08/886,572 application, which correspond to Count 2;
FURTHER ORDERED that a copy of this decision be given a paper number and be
entered in the administrative record of Shyamala's 08/886,572 application, Hillman's 09/007,306
application, and Hillman's 5,756,332 patent; and
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