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(2) The date upon which the first written description of the invention was made; if a written description of the invention has not been made prior to the filing date of the application, it must be so stated.
(3) The date upon which the invention was first disclosed to another person; if the invention was not disclosed to another person prior to the filing date of the application, it must be so stated.
(4) The date of the first act or acts susceptible of proof (other than acts of the character specified in subparagraphs (1), (2), and (3) of this paragraph) which, if proven, would establish conception of the invention, and a brief description of such act or acts; if there have been no such acts, it must be so stated.
(5) The date of the actual reduction to practice of the invention; if the invention has not been actually reduced to practice before the filing date of the application, it must be so stated.
(6) The date after conception of the invention when active exercise of reasonable diligence toward reducing the invention to practice began.
(b) The preliminary statement in every case must also set forth:
(1) The serial number and filing date of any prior copending application in the United States by the same applicant, not specified by the examiner in the notice of interference, disclosing the invention set forth by the counts of the interference, the benefit of the filing date of which application may be claimed as the effective filing date of the application or patent involved.
(2) The filing date and country (and number, if known) of any application for the same invention in a foreign country, the filing date of which may be claimed under 35 U. S. C. 119.
If a party intends to rely solely on a prior application, domestic or foreign, and on no other evidence, the preliminary statement may so state and may then consist only of the identification of the prior application and need not be signed or sworn to by the inventor.
217. Contents of the preliminary statement; invention made abroad. When the invention was made abroad the facts specified by rule 216 (a) (1) to (6) are not required, and in lieu thereof there should be stated :
When the invention was introduced into this country by or on behalf of the party, giving the circumstances with the dates connected therewith which are relied upon to establish the fact and, when appropriate, including allegations of activity in this country of the nature of that represented by rule 216 (a) (1) to (6).
If a party is entitled to the benefit of the second sentence of 35 U. S. C. 104 he must so state and his preliminary statement must include allegations of activity abroad corresponding to those required by rule 216 (a) (1) to (6).
) 6 218. Time for filing preliminary statement. The time for filing the preliminary statement is ordinarily specified in the notices of interference mailed to the parties (rule 209). If either party require a postponement of the time for filing his preliminary statement, he shall present a motion, duly served on the other parties, with his reasons therefor, and such motion should be made, if possible, prior to the day previously set. But an examiner of interferences may, in his discretion, extend the time on ex parte request, on stipulation, or upon his own motion.
219. Statements sealed before filing. The statement must be filed in a sealed envelope bearing the name of the party filing it and the number and title of the interference. The envelope should contain nothing but this statement and, if mailed, should be enclosed in an outer envelope. The statements may be opened only by an examiner of interferences.
221. Defective statements. If, on examination, a statement is found to be defective in any particular, the party may be notified of the defects, and a time assigned within which he must cure the same by an amended statement or be restricted in a specified manner; but in no case will the original or amended statement be returned to the party after it has been filed.
If a party shall fail or refuse to file an amended statement, he shall be restricted in the further proceedings in the interference as specified in the notice of the defects.
222. Correction of statement on motion. In case of material error arising through inadvertence or mistake, the statement may be corrected on motion (see rule 243), upon a satisfactory showing 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
223. Effect of statement. (a) The preliminary statement should be carefully prepared, as each of the parties by whom or on whose behalf it is made will be strictly held in his proofs to the dates set forth therein. This includes joint applicants or patentees; a new preliminary statement will not be received in the event the application is amended or the patent is corrected to remove the names of those not inventors, nor will a preliminary statement alleging different
dates be received if an application is amended or a patent is corrected to include a joint inventor, except by motion under rule 222.
(b) If a party proves any date earlier than alleged in his preliminary statement, such proof will be held to establish the date so alleged and none earlier.
(c) If a party to an interference fails to file a statement, testimony will not be received subsequently from him to prove that he made the invention at a date prior to the filing date of his application.
(d) The preliminary statement can in no case be used as evidence in behalf of the party making it.
224. Reliance on prior application. A party will not be permitted to rely on a prior application to obtain the benefit of its filing date unless the prior application is specified in the notice of interference or is set forth in the preliminary statement. A prior foreign application cannot be relied upon unless the necessary papers to prove a date of priority under 35 U. S. C. 119, including a translation (rule 55), are filed within three months, or within such extension of time as may be granted, from the filing of the preliminary statement, if they have not previously been filed. A motion to amend the preliminary statement to recite a prior application may be brought under rule 222 but a copy of such prior application must be served on the opposing party with the motion.
225. Failure of junior party to file statement or to overcome filing date of senior party. If a junior party to an interference fails to file a statement, or if his statement fails to overcome the prima facie case made by the filing date of the application of a senior party, such junior party shall be notified by an examiner of interferences that judgment upon the record will be rendered against him at the expiration of a time fixed by the examiner of interferences, not less than thirty days, unless cause be shown why such action should not be taken. Within this period any of the motions permitted by rules 231 to 236 may be brought, except that motions to dissolve (rule 232) must be limited to such matters as may be considered at final hearing (rule 258), but if a patent is not involved such junior party may file a statement as to his reasons for considering such claim or claims unpatentable, which statement shall be given due consideration by the primary examiner after the termination of the interference before acting on the application of the successful party. If a motion is denied by the primary examiner, the party under order to show cause may, within twenty days from the decision, request that final hearing be set to consider such matters as may be reviewed under rule 258.
226. Notice and access to applications. After the preliminary statements have been received and approved, or the time for filing them has expired, the parties will be notified, and given the serial numbers and filing dates of the applications of each adverse party, including any applications which the parties may be entitled to inspect, and the parties will be permitted to see or obtain copies of each other's applications, except copies of affidavits filed under rules 131 and 202 and affidavits under rule 204 of the nature specified in rule 131, which shall be and remain sealed until preliminary statements are opened under rule 227. The preliminary statements are resealed by an examiner of interferences and shall not be revealed to the opposing parties except as provided in rule 227.
The notices will also ordinarily specify the motion period (rule 231) and may also include an order to show cause (rule 225).
227. Access to preliminary statements. (a) The preliminary statements shall not be opened to the inspection of the opposing parties until after all motions under rules 231 to 236 and proceedings respecting the same have been finally disposed of or the time for filing such motions has expired without such a motion having been filed, and the case is in condition for taking of testimony.
(b) A junior party who fails to file a preliminary statement or a party who alleges no date in his preliminary statement earlier than the filing date of the application of another party shall not have access to the preliminary statement of said other party.
(c) If the interference be terminated by dissolution before the preliminary statements have been opened to the inspection of the parties, the preliminary statements will remain sealed.
(d) Unopened statements will be removed from interference files and preserved by the Office, and in no case will such statements be
en to the inspection of the opposing party without authority from the Commissioner.
INTERFERENCES: MOTION PERIOD, DISSOLUTION,
231. Motion period. After the preliminary statements have been received and approved, or the time for filing them has expired, a period will be fixed within which the various motions specified in rules 232 to 236 may be brought by the parties. The period, not less than thirty days, will be fixed by an examiner of interferences in the notice referred to in rule 226. In the case of a junior party under order to show cause (rule 225) the period specified for answer to the order is the motion period and such motions may be brought as constitute an answer to the order.
232. Motions to dissolve. (a) Motions to dissolve an interference may be brought on the ground (1) that there has been such informality in declaring the same as will preclude the proper determination of the question of priority of invention, or (2) that the claims forming the counts of the interference are not patentable, or are not patentable to a particular applicant, while being patentable to another party, or (3) that a particular party has no right to make the claims, or (4) that there is no interference in fact if the interference involves a design or plant patent or application, or if the interference involves a patent, a claim of which has been copied in modified form.
(b) When one of the parties to the interference is a patentee, no motion to dissolve may be brought by any party on the ground that the subject matter of a count is unpatentable to all parties or is unpatentable to the patentee, except that a motion to dissolve as to the patentee may be brought which is limited to such matters as may be considered at final hearing (rule 258).
(c) Motions to dissolve on the ground that the counts are unpatentable, or are unpatentable to the party bringing the motion, must be accompanied by a proposed amendment to the application of the moving party cancelling the claims forming the counts of the interference, which amendment shall be entered by the primary examiner to the extent the motion is not denied, after the interference is terminated.
233. Motions to amend. (a) Motions may be brought to amend the interference to put in issue any claims which should be made the basis of interference between the moving party and any other party. When a patent is involved, such claims must be claims of the patent (as provided by rule 205). If the claims are not already in the application of the moving party, the motion must be accompanied by a proposed amendment adding the claims to the application. The preliminary statement for the proposed counts may be required before the motion is considered.
(b) Such motions must, if possible, be made within the time set, but if a motion to dissolve the interference has been brought by another party, such motions may be made within thirty days from the filing of the motion to dissolve. In case of action by the primary examiner under rule 237 (a), such motions may be made within thirty days from the date of the primary examiner's decision on motion wherein an action under rule 237 (a) was incorporated or the date of the communication giving notice to the parties of the proposed dissolution of the interference.
(c) Where a party opposes the addition of such claims in view of prior patents or publications, full notice of such patents or publications, applying them to the proposed counts, must be given to all parties at least twenty days prior to the date of hearing.
(d) The proposed claims must be indicated to be patentable in the opinion of the moving party in each of the applications involved in the