Patentability argument permitted although rejected as untimely in Interference proceeding
Illinois Tool Works Inc. v. Frito-Lay North America, Inc., No. 06-54-GMS, July 9, 2007.
Sleet, C.J. Defendant’s motion to preclude patentability issues in this case is denied.
After interference proceedings, the Board ruled in favor of defendant, awarding it priority of the invention relating to flexible, resealable food packaging with “pinch-grip” opening. The Board did not rule on the patentability of the claims because plaintiff did not file a timely motion on the issue. However, plaintiff’s “mention” of patentability during briefing on priority sufficiently placed the matter before the Board, although this was a close call. Although defendant had argued plaintiff’s motion was untimely, it briefed the issue of patentability in the merits. New patentability arguments will not be permitted.
A copy of the full opinion is available here.
