Rodriguez Rilo v Benedict

Informative decision only: persuasive authority, not binding precedent. When a senior party suggests that a junior-party applicant's Bd.R. 202 statement fails to show interfering subject matter, an administrative patent judge need not issue an order to show cause, because Bd.R. 202(d)(2) expressly provides that remedy only for a failure to show priority and any such order under Bd.R. 104(a) is discretionary. The senior party's remedy is to seek authorization to file a motion for judgment of no interference-in-fact under Bd.R. 121(a)(1), which may be expedited, because the declaration is presumed correct. No prior precedent directly addressed this issue in the text. For the party opposing the interference (here the senior party, Benedict), a thin Bd.R. 202 showing does not by itself trigger a show-cause order or defeat declaration. The opponent must instead seek authorization for a no interference-in-fact motion, and may ask that it be expedited. For the applicant (the junior party, Rilo), a sparse showing on how the claims interfere is treated as an admission that the differences would have been obvious, but that admission binds only the applicant. The Board relied on Bilstad v. Wakalopulos, 386 F.3d 1116, 1120-21 (Fed. Cir. 2004), for the presumption that a declaration is correct and for placing the burden on the threshold movant. It also cited Exxon Corp. v. Phillips Petroleum Co., 265 F.3d 1249, 1254 (Fed. Cir. 2001), for the point that Office rules create no third-party enforcement rights. LEGAL TEST OR STANDARD: No multi-factor test. Bd.R. 202(d)(2) expressly provides for an order to show cause only when the applicant fails to demonstrate facially why it would prevail on priority. For other defects in the Bd.R. 202 statement there is no corresponding express authority. An administrative patent judge may enter non-final orders for administration of the interference under Bd.R. 104(a). Orders under both rules are committed to the judge's discretion. The proper vehicle to challenge interfering subject matter is a motion for judgment of no interference-in-fact under Bd.R. 121(a)(1) and Bd.R. 201, 'Threshold issue'. TRIGGERING FACTS: A junior-party applicant seeking an interference filed a Bd.R. 202 statement. The senior party patentee suggested a show-cause order because the applicant allegedly failed to demonstrate interfering subject matter. The applicant's showing on how the claims interfere was sparse. The interference had been declared. The suggestion was heard at a telephonic hearing and declined. KEY QUOTE: "Benedict's remedy is to seek authorization to file a motion for judgment of no interference-in-fact." (Paper 17, p. 3) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. The decision follows Bilstad v. Wakalopulos, 386 F.3d 1116, 1120-21 (Fed. Cir. 2004), on the presumption that a declaration is correct, and cites Exxon Corp. v. Phillips Petroleum Co., 265 F.3d 1249, 1254 (Fed. Cir. 2001). PRACTICE TIP: If you are the senior party and think the junior party's Bd.R. 202 statement fails to show interfering subject matter, do not request a show-cause order. Request authorization for a motion for judgment of no interference-in-fact under Bd.R. 121(a)(1), and suggest expediting it in the same request.