Priority Claim Lost Because Applicant in the Priority Application Differed from the Applicant in the U.S. Application

Boston Scientific Scimed, Inc., v. Medtronic Vascular, Inc., [2006-1434] (August 8, 2007) [MAYER, Bryson, Prost] The Federal Circuit affirmed the decision of the Board of Patent Appeals and Interferences denying Scimed priority of an earlier filed European patent application.
SIGNIFICANCE: The applicant in the priority application must be the same as, or acting on behalf of, the U.S. applicant.
BRIEF: MinTec filed two European patent applications. At the time the MinTec filed, there was no legal relationship between MinTec and Cragg and Dake, nor was MinTec acting on behalf of Cragg and Dake. Cragg and Dake subsequently assigned their rights to MiTec. Cragg and Dake subsequently filed an application in the U.S. and assigned their rights to Scimed. After an interference was declared in the U.S., Scimed sought to claim priority to the European applications, but because the applicant in the European applicant was not the same as the U.S. applicant, nor was the European applicant acting on behalf of the U.S. applicant.
The Federal Circuit affirmed, finding the language of Section 119, as construed by the courts, requires that the prior foreign applicant be filed by or on behalf of the same applicant as in the U.S. The Federal Circuit affirmed the district court.