An interference is declared when two parties have patentable claims to the
same subject matter. A count is formed which represents the common patentable
subject matter of the parties.
In this case, as all of the claims, including Rickerby's claim 16, which is the
count, have been held unpatentable, there is no patentable subject matter common
to both parties on which to base a count. Because neither party has patentable
subject matter that corresponds to the count, no contest for priority as is
contemplated by 35 U.S.C. §135 exists. See Conservolite. Inc. v. Widmaye , 21 F.3d
1098, 1100, 30 USPQ2d 1626, 1628 (Fed. Cir. 1994), Squires v. Corbett, 560 F.2d
424, 433, 194 USPQ 513, 519 (CCPA 1977). Therefore, we will not proceed to the
priority phase of this interference.
Judgmen
Judgment is hereby entered against the senior party, Rickerby on the grounds
of unpatentability. Senior party Rickerby is not entitled to a patent containing claims
1, 2, 4 to 6, 12 to 16 and 18 to 21.
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Last modified: November 3, 2007