1 contest priority in this interference, inasmuch as Ajinomoto relied upon erroneous and
2 misleading evidence before the examining corps in establishing the allowability of the Ajinomoto
3 claims and requesting interference.
4 It was our determination that but for the filing of the Kawauchi declaration, and the
5 examiner’s reliance thereupon, the interference would not have been declared in the first
6 instance. The materiality of the erroneous and misleading declaration is established by the
7 examiner’s apparent actual reliance thereon. The significance of the Kawauchi declaration is
8 more fully discussed in Paper 150.
9 Accordingly, we have chosen to treat the filing of an erroneous and misleading
10 declaration during ex parte prosecution which resulted in the declaration of an interference as a
11 threshold issue under 37 CFR § 41.201, depriving the junior party of standing in this
12 interference. We note that the issues expressly listed in the rule are not exclusive, and that the
13 wording of the rule leaves open the possibility that other conduct of a party would deprive that
14 party of standing in an interference. Filing of an erroneous and misleading declaration in ex parte
15 prosecution is similar to other threshold issues enumerated in the rule in that the enumerated
16 threshold issues deal with instances where an interference should not have been declared. It is our
17 determination that this is such an instance. We therefore terminate this interference with a
18 judgment against Ajinomoto.
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Last modified: November 3, 2007