In Loughlin v. Ling, the Federal Circuit
affirmed a decision of the USPTO Board of Patent Appeals and
Interferences that had canceled the sole claim of Loughlin's
patent in an interference proceeding. The decision turned on the
interplay between the interference statute of limitations (35 USC
§ 135(b)(2)) and the domestic priority statute (35 USC §
120).
The Patent and Application At Issue
Loughlin's patent (U.S. 7,434,426) was filed on May 13, 2004 and
prosecuted under application no. 10/845,624. The '624
application was published on November 18, 2004. After several years
of pendency, claim 42 was allowed and the patent issued October 14,
2008 with that single claim.
Ling's application (11/671,404) was filed on February 5, 2007, and
claimed priority under 35 USC § 120 to application no.
10/759,413, filed on January 16, 2004. Coincidentally, Ling's
parent application was published on the same day as Loughlin's
application, due to their similar foreign and
