Loughlin v. Ling, No. 11-1432 (Fed. Cir. 2012)
Annotate this CaseIn 2004, Loughlin filed application 624, which issued in 2008, as the 426 patent. In 2007, Ling filed the 404 application, which was granted priority benefit under 35 U.S.C. 120, from application 413, filed in January, 2004. All claim a “multiple function lock.” Ling, seeking to provoke an interference, copied claims from pending application 624. In 2010, the Patent and Trademark Office declared an interference between claim 1 of the 426 patent and claim 31 of Ling’s 404 application. Loughlin asserted that, under 35 U.S.C. 135(b)(2), Ling was barred from provoking an interference because Ling’s attempt to copy the claim from Loughlin’s published application was untimely; Ling’s 404 application is “an application filed” after the publication date of Loughlin’s 624 application and Ling copied Loughlin’s claim more than one year after its publication date. The Board denied Loughlin’s motion, finding that the bar does not apply to an application filed before a published application. Ling’s 404 application, having an effective filing date of January 2004, was not an application filed after Loughlin’s application, published November 2004. The Board cancelled claim 1 of the 426 patent. The Federal Circuit affirmed.
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