Interference 103,781
Hoping to discover any evidence indicating that Fischhoff’s
claims designated as corresponding to the count are unpatentable
in view of a “possible prior invention by Barton,” Adang moved
on May 8, 1997, for judgment that all of Fischhoff’s claims
designated as corresponding to the interference count are
unpatentable under 35 U.S.C. § 102(g)/103 over whatever evidence
may possibly be discovered indicating the prior invention thereof
by Barton (Paper No. 47). At the time Adang filed its motion, an
APJ had already ordered Monsanto to name the prior inventor of
the interference count as between commonly assigned Barton and
Fischhoff (Paper No. 29), Monsanto had elected Fischhoff as first
to invent the interfering subject matter, Barton had petitioned
the Commissioner to reverse or postpone the APJ’s order (Paper
No. 35), and Barton’s petition had been denied (Paper No. 38).
The Board entered judgment against Barton relative to the
invention defined by the then existing count (Paper No. 53),
Barton appealed the judgment to the Federal Circuit (Paper
No. 55), and the Federal Circuit reversed and remanded
instructing the Board that its requirement for Monsanto to elect
the first to invent the subject matter of the interference count
as between Barton and Fischhoff had been premature before the
scope of the count was final and discovery was complete.
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