Interference No. 102,622
§ 1.633(a) (Paper Numbers 15 and 16) on the grounds that
Oates' claims corresponding to the count were (1) unpatentable
under 35 U.S.C. § 103 from the disclosure of Bralley et al.
(U.S. Patent Number 2,455,653) and (2) were unpatentable from
the disclosure of Misura et al. (U.S. Patent Number
4,959,429). The Administrative Patent Judge (APJ), in the
performance of his interlocutory duties, denied both motions
for reasons expressed in the decision on motions (Paper Number
47). In Paper Number 51, Rivetti et al. requested
reconsideration of that portion of the APJ's decision on
motions denying the motions for judgment.
In Paper Number 53, a three judge merits panel
reconsidered the APJ's interlocutory decision but declined to
make any changes in the decision below. Thus, the request for
reconsideration was denied.
We have carefully reconsidered anew Rivetti et al.'s
motion for judgment based on the record evidence but find that
Rivetti et al. have failed to meet their burden of persuasion
on this issue. Specifically, notwithstanding Rivetti et al.'s
"adjacent homolog" theory, we find that nothing in the Bralley
et al. patent would have directed a person of ordinary skill
in the art to prepare the compounds claimed by Oates. While
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