Interference 103,781
all of the arguments presented in support of Adang’s belated
request (Paper No. 212) and properly denied the request.
On July 18, 2003, Fischhoff filed Monsanto Election pursuant
to 37 CFR § 1.602(a) designating “Junior Party Fischhoff et al.
as first to invent, vis-a-vis the Junior Party Barton et al., the
subject matter defined by Count 2” (Paper No. 182). In that
Fischhoff hereinabove has been determined to be the first to
invent the subject matter of Count 2 of this interference, based
on the evidence of record and Monsanto’s election of Fischhoff as
first to invent the subject matter of Count 2 as between Barton
and Fischhoff, judgment on priority of the invention of Count 2
shall be entered against Adang and nonelected Barton. Hence,
Barton’s claims designated as corresponding to Count 2 are
unpatentable to Barton under 35 U.S.C. § 102(g)/103 in view of
the claims of Fischhoff’s involved application at least in-part
defining Count 2. Nevertheless, Adang argues that the interest
of justice still requires consideration of the issue of priority
between Barton and Fischhoff because “[v]ery little was known
regarding the inventive activities of Kenneth Barton and Michael
Miller” at the outset of this interference, i.e., on November 7,
1996, and much has changed in 6 years (AB 63). Specifically,
Adang states (AB 63-64, bridging para.):
In Delaware II litigation, the Court of Appeals for
the Federal Circuit affirmed that the invention of Kenneth
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