Interference No. 103,625
issue 1, Wallach must submit their own arguments with respect to the issue. Wallach did
not present any arguments in their brief with respect to the issue of APJ’s abuse of
discretion, accordingly, the Wallach brief (Paper No. 90) is dismissed.
LeMaire clearly state in their brief that they do not seek review of the APJ’s
decision not to decide LeMaire motions 2-11(See Paper No. 89, page 6, Argument,
paragraph 1). However, from the tone of the LeMaire brief, at pages 11 and 12, one could
infer that LeMaire seek review of LeMaire motion 1 (37 C.F.R. § 1.633(f)) because
LeMaire argue that their earlier filed applications satisfy 35 U.S.C. § 112, first paragraph
with respect to the count. In the LeMaire reply brief (Paper No. 95, page 2), the inference
is confirmed where LeMaire allege that the APJ decided LeMaire motion 1 in substance in
her decision on motion and they continue to maintain that they are entitled to benefit of the
filing dates of their ‘072 and ‘089 German applications with respect to the count for the
reasons set forth in their brief. However, the decision on
8
motion clearly shows that the LeMaire motion 1 was not decided . Accordingly, the
LeMaire arguments regarding the merits of LeMaire motion 1 have been given no
consideration.
With respect to the dismissed LeMaire motions, LeMaire do not present
any argument in their brief that the APJ abused her discretion in dismissing LeMaire
The standard for determining benefit to antedate a reference with respect to the8
full scope of the claims, the issue before us, is different from the standard for determining
benefit as to a count (emphasis added). See In re Gosteli, 872 F.2d 1008, 1012, 10
USPQ2d 1614,1617 (Fed Cir. 1989); Anderson v. Norman, 185 USPQ 371 (Comm’r
Pats. 1968); Weil v. Fritz, 572 F.2d 856, 196 USPQ 600 (CCPA 1978).
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