Interference No. 103,640
issued an interim rule change of patent interference rule 37 CFR
§ 1.655(a). 64 FR 12900. The rule deals with the application
of the abuse of discretion standard by a merits panel when
considering an interlocutory order entered by a lone APJ acting
in an interlocutory capacity. The rule has been changed to
emphasize that a panel of the Board will resolve the merits of an
interference as a panel without deference to any interlocutory
order. Panels will, however, continue to apply the abuse of
discretion standard but only with respect to procedural matters
decided by the lone APJ acting in an interlocutory capacity.
Accordingly, we consider the substantive issues dealt with by the
APJ in his interlocutory capacity and raised by the parties in
their briefs, giving them de novo consideration in this decision.
With regard to the date of effectiveness of the interim
rule, the interim rule notice states that the amended rule is
effective as of the date of publication, viz., March 16, 1999.
Accordingly, the review of the APJ’s decisions on the preliminary
motions has been decided in the following decision without
deference to the prior decision by the lone APJ. It is noted
that both parties have briefed and argued the issue under the
abuse of discretion standard. However, the standard of review
instituted by the interim, and now final, rule has been used by
the panel in rendering this decision.
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