Interference No. 105,209
held unpatentable in the Decision on Preliminary Motions as well as based on priority.
Count 1 is the sole count in this interference. As discussed in the Decision on
Preliminary Motions, Paper No. 143, Rhoads U.S. Application No. 08/637,531, filed April 25,
1996 is Rhoads earliest constructive reduction to practice for Count 1. Similarly, Chapman’s
earliest constructive reduction to practice for Count 1 is its GB Application 9708192, filed on
April 23, 1997. Based upon the constructive reductions to practice, Chapman is the junior party
in this interference.
Chapman filed a preliminary statement. (Paper No. 63). Chapman’s preliminary
statement alleges that the inventors of Chapman’s involved patent first conceived of the subject
matter of the count on January 4, 1996. (Paper No. 63, ¶ 6). Chapman alleges that:
The date after Chapman’s conception of the invention when active exercise of
diligence towards reducing the invention to practice began is 25 April 1996.
(Paper No. 63, ¶ 8).
Chapman’s alleged diligence date of April 25, 1996 is also the date of Rhoads accorded
priority benefit. Accordingly, Chapman has failed to allege a date of priority of invention upon
which it can prevail in this interference. Specifically, under 35 U.S.C. § 102(g), reasonable
diligence need be established “from a time prior to conception by the other.” 35 U.S.C. §
102(g)(2).
The interference rules provide that:
If a junior party fails to file a priority statement overcoming a senior party’s
accorded benefit, judgment shall be entered against the junior party absent a
showing of good cause.
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