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Court Clarifies Interference Priority Rule
In Boston Scientific Scimed, Inc. v. Medtronic Vascular, Inc., 06-1434 (Fed. Cir. Aug. 8, 2007), the Federal Circuit held that a foreign patent application may only form the basis for priority under 35 U.S.C. '119(a) if that application was filed by either the U.S. applicant himself or by someone acting on his behalf at the time the foreign application was filed.
On April 23, 1998, the U.S. Patent and Trademark Office Board of Patent Appeals and Interferences ('Board') declared an interference between three pending applications. Initially, the Board determined that Andrew Cragg and Michael Dake ('Cragg'), who had assigned rights in one of the U.S. applications at issue to Boston Scientific Scimed, Inc., were entitled to the benefit of the filing dates of two European patent applications filed by MinTec SARL ('MinTec'). However, at the time the European applications were filed, no legal relationship existed between MinTec and Cragg, nor was MinTec acting on behalf of Cragg.
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