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IP News

By Matt Berkowitz and Hany Rizkalla

Federal Circuit Interprets 'New Evidence' under Interference Rules

In In Re Garner, 2007-1221 (Fed. Cir. Dec. 5, 2007), a patent applicant ('Garner') appealed from a ruling by the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences ('Board') that he had failed to make a prima facie showing of priority in an interference proceeding. The Federal Circuit held that the Board erred in refusing to consider certain documents Garner submitted in response to an Order to Show Cause, but which had not been submitted along with the Rule 202(d) declaration that provoked the interference. However, the Federal Circuit deemed this error harmless because the additional documents did not establish a prima facie case of priority.

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