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disclaimer shall be embodied in and form part of his specification. (See Rule 196.) But if the interference shall have been declared between an application having a generic claim and one having a subordinate specific claim, the applicant making the specific claim may disclaim the matter in issue, as hereinbefore provided, without canceling his claim. The files and records shall then be returned by the examiner of interferences to the primary examiner. If the primary examiner shall find that the interfering claims stand so related to each other (as generic and specific, respectively), and that the disclaimer filed is suitable to the case, he shall dissolve the interference; otherwise not. His decision shall be subject to appeal as in other cases of dissolution. (Rule 122.) 108. When applications are declared to be in interference, 1887 -126. Inspection of the interfering parties will be permitted to see or obtain claims of oppos copies of each other's file-wrappers, and so much of their contents as relate to the interference, after the preliminary statements referred to in Rule 110 have been received and approved; but information of an application will not be furnished by the office to an opposing party, except as provided in Rules 97 and 103, until after the approval of such statement.

ing parties.

Invention

claimed in appli

109. When an application is involved in an interference in 1887-94. part and shows and describes, without claiming, a patentable shown but not invention claimed by another party thereto, the applicant cation. may, at any time within twenty days after the preliminary statements (referred to in Rule 110) of the parties have been received and approved, on motion duly made, as provided in Rule 153, file an amendment of his application duly claiming such invention, and on the admission of such amendment the invention shall be included in the interference. Such motion must be accompanied by the proposed amendment, and when in proper form will be transmitted by the examiner of interferences to the primary examiner for his determination. In case the amendment shall be admitted, the primary examiner will redeclare the interference, prepare new notices, and forward the papers and files to the examiner of interferences, who will proceed in accordance with Rule 103. The decision of the primary examiner will be binding upon the examiner of interferences, unless reversed or modified on appeal, as provided in Rule 124.

Preliminary

110. Each party to the interference will be required to file 1887-105. a concise preliminary statement, under oath, on or before a statements, date to be fixed by the office, showing the following facts:

(1) The date of original conception of the invention set of."
forth in the declaration of interference.

Requirements

Sealed up.

1887-105.

Opened to inspection.

In default.

(2) The date upon which a drawing of the invention was made.

(3) The date upon which a model of the invention was made.

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(4) The date upon which the invention was first disclosed to others.

(5) The date of the reduction to practice of the invention. (6) A statement showing the extent of use of the in

vention.

If a drawing or model has not been made, or if the invention has not been reduced to practice or disclosed to others, or used to any extent, the statement must specifically disclose these facts.

When the invention was made abroad the statement should set forth:

(1) That applicant made the invention set forth in the declaration of interference.

(2) Whether or not the invention was ever patented; if
so, when and where, giving the date and number of
each patent.

(3) Whether or not the invention was ever described in
a printed publication; if so, when and where, giv-
ing the title, place, and date of such publication.
(4) Whether or not the invention was ever introduced
into this country; if so, giving the circumstances,
with the dates connected therewith, which are re-
lied upon to establish the fact.

The preliminary statements should be carefully prepared, as the parties will be strictly held in their proofs to the dates set up therein.

The statement must be sealed up before filing (to be opened only by the examiner of interferences, see Rule 111), and the name of the party filing it, the title of the case, and the subject of the invention indicated on the envelope. The envelope should contain nothing but this statement. (For forms, see 35, Appendix.)

111. The preliminary statements shall not be opened to the inspection of the opposing parties until each one shall have been filed, or the time for such filing, with any extension thereof, shall have expired, and not then unless they have been examined by the proper officer and found to be satisfactory.

Any party in default in filing his preliminary statement shall not have access to the preliminary statement or statements of his opponent or opponents until he has either filed

his statement or waived his right thereto, and agreed to stand upon his record date.

Notice to

Motion to

112. If, on examination, a statement is found to be de- 1887-106. fective in any particular, the party shall be notified of the amend. defect and wherein it consists, and a time assigned within which he must cure the same by an amended statement; but in no case will the original or amended statement be returned to the party after it has been filed. If a party shall refuse to file an amended statement, he will be restricted to his record date in the further proceedings in the interference. 113. In case of material error arising through inadvert- 1887-110. ence or mistake, the statement may be corrected on motion amend. (see Rule 153), upon showing to the satisfaction of the Commissioner that the correction is essential to the ends of justice. The motion to correct the statement must be made, if possible, before the taking of any testimony, and as soon as practicable after the discovery of the error. 114. If the junior party to an interference, or if any party Failure to file thereto other than the senior party, fail to file a statement, prelimi or if his statement fail to overcome the prima facie case made by the respective dates of application, judgment case. against such party may be rendered upon the record, and the interference will proceed between the remaining parties. Within the period fixed as a limit of appeal from such judgment, said party may bring any of the motions permitted by the rules, provided he has not waived his right of appeal. The filing of such a motion, noticed for hearing within the limit of appeal, will operate to stay the running of the time so limited until the final determination of the motion.

115. If a party to an interference fail to file a statement, testimony will not be received subsequently from him to prove that he made the invention at a date prior to his application.

1887-107.

preliminary

Failure to overcome prima facie

1887-108. testimony ex

Failure to file

cluded setting up

invention prior to

application date.

1887-111. Presumption as

tion.

116. In original proceedings in cases of interference the several parties will be presumed to have made the invention to order of invenin the chronological order in which they claimed the same in their completed applications for patents clearly illustrating and describing the invention; and the burden of proof will rest upon the party who shall seek to establish a different state of facts.

117. The preliminary statement can in no case be used 1887-108. as evidence in behalf of the party making it.

118. Times will be assigned in which the junior applicant shall complete his testimony in chief, and in which the other party shall complete the testimony on his side, and a further time in which the junior applicant may take rebutting 21330- -3

Statement not evidence.

1887-112. Time for taking testimony.

1887-113. Failure to take testimony.

1887-114. Postponement of hearing.

1887-115.

Enlargement of

testimony; but he shall take no other testimony. If there be more than two parties to the interference, the times for taking testimony will be so arranged that each shall have an opportunity to prove his case against prior applicants and to rebut their evidence, and also to meet the evidence of junior applicants.

119. Whenever the time for taking the testimony of a party to an interference shall have expired, and no testimony shall have been taken by such party, any senior party may, by motion based on a showing properly verified and served on such party in default, have an order entering judgment against such defaulting party, unless the latter shall, at a day to be named in the motion and to be not less than ten days after the hearing of the motion, show good and sufficient cause why the judgment shall not be entered. 120. If either party desire to have the hearing continued, he will make application for such postponement by motion (see Rule 153), and will show sufficient reason therefor by affidavit.

121. If either party desire an extension of the time astime for taking signed to him for taking testimony, he will make application therefor, as provided in Rule 154 (5).

testimony.

1887-116.

Motion to dis

122. Motions to dissolve an interference upon the ground solve for irregu- that no interference in fact exists, or that there has been larity, non-patentability, etc. such irregularity in declaring the same as will preclude a proper determination of the question of priority, or which deny the patentability of an applicant's claim, or his right to make the claim, should, if possible, be made not later than the twentieth day after the statements of the parties have been received and approved. Such motions, when in proper form, will be transmitted by the examiner of interferences, with the files and papers, to the proper primary examiner for his determination.

1887-117. Motions to ef

When the motion has been decided by the primary examiner, if no appeal has been taken therefrom, at the expiration of the time limited for appeal, the examiner will return the files and papers, with his decision, to the examiner of interferences. Such decision will be binding on the examiner of interferences unless reversed or modified on appeal. (Rule 124.)

123. All lawful motions, except those mentioned in Rule fect stay of pro- 122, will be made before and determined by the tribunal ceedings. having jurisdiction at the time. The filing of motions will not operate as a stay of proceedings in any case. To effect this, motion should be made before the tribunal having jurisdiction of the interference, who will, sufficient grounds

appearing therefor, order a suspension of the interference pending the determination of such motion.

124. Appeal may be taken directly to the Commissioner 1887-118. Appeal to Comfrom decisions of the primary examiner on all motions ex-missioner. cept the following: (1) On motions to dissolve which deny the patentability of applicant's claim; (2) on motions to dissolve which deny the right of an applicant to make the claim; (3) on motions involving the merits of the invention. Decisions on these motions, when appealable, go to the To examinersexaminers-in-chief, and upon such appeals the party only whose claim is affected shall have the right to appear and be heard, unless the question is inter partes.

From a decision of the primary examiner affirming the patentability of the claim or the applicant's right to make the same no appeal can be taken.

in-chief.

Determination.

Concession of

125. After the interference is finally declared, it will not, 1887-119. except as herein otherwise provided, be determined without judgment of priority founded either upon the testimony, or upon a written concession of priority by one of the par- priority. ties, signed by the inventor himself (and by the assignee, if any), or upon a written declaration of abandonment of the invention (Rule 171).

126. The examiner of interferences or the examiners-in- 1887-120. Statutory bar chief may, either before or in their decision on the question suggested. of priority, direct the attention of the Commissioner to any matter not relating to priority which may have come to their notice, and which, in their opinion, establishes the fact that no interference exists, or that there has been irregularity in declaring the same (Rule 122), or which amounts to a statutory bar to the grant of a patent to either of the parties for the claim or claims in interference. The Commissioner may, How determined. before judgment on the question of priority, suspend the interference and remand the case to the primary examiner for his consideration of the matters to which attention has been directed. From the decision of the examiner appeal may be taken as in other cases. If the case shall not be so remanded, the primary examiner will, after judgment, consider any matter affecting the rights of either party to a patent which may have been called to his attention, unless the same shall have been previously disposed of by the Commissioner.

1887-121. Second inter

Vacation of

127. A second interference will not be declared upon a new application for the same invention filed by either party. ference. A decision will not be set aside after judgment, except in judgment. accordance with the principles governing the granting of new trials,

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