Interference No. 103,830
October 27, 1994 and December 2, 1994, this still leaves a period of over three months which is
not accounted for between Hutmacher’s entry into the field on July 11, 1994 and October 27,
1994. Burns v. Curtis, 172 F.2d at 588, 80 USPQ at 587.
In view of our findings above with respect to Pacholok’s evidence, the senior party
Hutmacher is entitled to prevail herein on the issue of priority of invention.
Correspondence of Hutmacher’s Claims 5-12, 14-16, 20 and 21
The deferred motion of Hutmacher to redefine the interfering subject matter by
designating its claims 5-12, 14-16, 20 and 21 as not corresponding to either count 1 or count 2 is
dismissed as moot in view of our find above that party Hutmache r is the first to invent.
Patentability of Hutmacher Claim 23
Hutmacher contends that the Administrative Patent Judge erred in holding that
Hutmacher claim 23 is unpatentable to Hutmacher under 35 U.S.C. § 112, first paragraph,
because its specification does not support the claim and seeks to have that holding overruled. It
is the senior party’s position at page 14 of its brief that when its vehicle drives over a structure
on a driving surface, the ve hicle disabler is placed under the vehicle.
The burden of showing that an interlocutory order should be modified is on the party
attacking the order. The abuse of discretion standard does not apply to this issue of patentability.
37 CFR § 1.655(a).
Hutmacher is incorrect to argue that In re Spina, 975 F.2d 854, 24 USPQ2d 1142 (Fed.
Cir. 1992) is controlling here and that claim 23 should be construed in light of Pacholok's
specification. Rather, 37 CFR § 1.633(a), which was amended April 21, 1995, controls this
situation. The third sentence of the rule specifies that "[i]n deciding an issue raised in a motion
filed under this paragraph (a), a claim will be construed in light of the specification of the
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