Interference 103,781
Barton and Michael Miller in 1987 invalidated certain
claims of Fischhoff’s U.S. Patent No. 5,500,365, which
issued from the parent of the Fischhoff application
involved in this interference.
The invention of Count 2 of this interference is far broader
than the invention defined by Claims 7-9 and 12 of Fischhoff’s
U.S. Patent 5,500,365 which were at issue in Delaware II.
Second, Fischhoff’s U.S. Patent 5,500,365 is not involved in
this interference and no claim thereof is, or has ever been,
designated as the same patentable invention as Count 2 of this
interference. Third, the evidence of record shows that Fischhoff
first conceived of the invention of Count 2 prior to “the
invention of [Claims 7-9 and 12 of U.S. Patent 5,500,365] of
Kenneth Barton and Michael Miller in 1987" (AB 63-64).
Adang further argues (AB 63-64, bridging para.):
Barton has remained a party in the interference through to
Final Hearing. Nonetheless, Monsanto did not file a
preliminary statement or a case-in-chief on behalf of Barton
and, therefore, the interference record is devoid of any
record reflecting the basis upon which Monsanto determined
Fischhoff to be prior inventor of Count 2 vis-a-vis Barton.
Additional discovery is authorized under the interference rules,
but it must be shown that the interest of justice requires the
discovery, and the motion must be timely. 37 CFR § 1.687(c).
While Adang argues that a great deal of knowledge has been
acquired in the six (6) years since this interference was
initiated, none of that knowledge appears to have been cited or
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