Henkel v. Procter & Gamble (Fed. Cir. 2007).
Henkel and P&G both make dishwashing detergent tablets, and both parties applied for patents on tablets with two-regions that dissolve at different rates. P&G filed its application one-month before Henkel, and thus became the senior party in the interference proceeding.
The BPAI awarded priority to P&G after finding that Henkel had not proven an earlier conception and reduction to practice. The BPAI opinion turned on the finding that Henkel had not proven an appreciation of its invention that was contemporaneous with conception and reduction to practice.
On appeal, the CAFC reversed, finding that the “appreciation” requirement is not so strict.
As a matter of law, we do not require that a junior party in an interference demonstrate that it recognized the exact language of the ultimate count—only the subject matter of the invention.
In discussing the appreciation requirement, the court noted that the requirement is to prevent a late filer from obtaining priority after “unwittingly and accidentally created something new.” That was not the case here.
Vacated and remanded.
Same invention and respective filing dates one month apart. Wonder what happened between the two of them in First to File territory. First to file doesn’t necessarily win (if for example if he files too soon and his disclosure is non-enabling). Does anybody know if first filer American P&G came out on top against non-American Henkel, in every first-to-file country of the world?
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