Josef Schmitt and Jacques J. Panouse v. John C. Babcock and Milton E. Herr

SMITH, Judge.

Babcock and Herr were awarded priority as to the sole count in interference based on a constructive reduction to practice of the invention prior to appellants Schmitt and Panouse. The Board of Patent Interferences denied Schmitt and Panouse’s claim to the benefit of the earlier filing date of a French application under 35 U.S.C. § 119. Had the Board found that appellants were entitled to the earlier filing date, the parties agree the award of priority should have gone to appellants. The sole issue presented is whether the board erred in denying appellants’ claim to the benefit of…