Patent Interference No. 103,548
· Contingent16 on granting KPM7, Contingent Preliminary Motion 8 - under 37 CFR
§ 1.633(a) for judgment against Lagrange reissue claim 34 designated to
correspond to Count 3 that the claim is not patentable to Lagrange, filed March
31, 1997 (paper no. 64) [KPM8].
· Motion to suppress evidence17 - under 37 CFR § 1.656(h), filed January 30, 1998
(paper no. 93) [KMS].
No issue of no interference-in-fact has been raised.18
PRIORITY
Konrad has been accorded senior party status. Accordingly, as the junior party,
Lagrange has the burden of proof of establishing priority by a preponderance of the
evidence. 37 CFR § 1.657(b). Bosies v. Benedict, 27 F.3d 539, 542, 30 USPQ2d 1862,
1864 (Fed. Cir. 1994).
Lagrange must establish that it reduced to practice, either actual or constructive,
the inventions of the counts before senior party Konrad's earliest benefit date (May 19,
16 Although Konrad does not entitle this motion as contingent on the granting of KPM7, this must be what
Konrad intends. The motion is under 37 CFR § 1.633(a) and is being applied to Lagrange Reissue claim
34. 37 CFR § 1.633(a) refers to "A motion for judgment against an opponent's claim designated to
correspond to a count..." [our emphasis]. Currently, Lagrange Reissue claim 34 is designated as not
corresponding to a count. Lagrange claim 34 can only correspond to a count if KPM7 is granted.
17 Although the paper is entitled "Party Konrad Et Al.'s Objection To Admissibility ... Under 37 CFR §
1.656(h)...", in the body of the paper, Konrad "moves to suppress..." (p. 2).
18 Although an issue of no interference-in-fact has not been explicitly raised, LPM3 infers it. Since
Lagrange reissue claims 27 and 28 have been cancelled and Lagrange reissue claims 30-34 have been
designated as not corresponding to a count, Lagrange reissue claims 1-21, 24-26 and 29 at issue are the
only claims remaining as designated to correspond to the count. Accordingly, LPM3 seeks to have
designated as not corresponding to the counts all the Lagrange reissue claims designated as
corresponding to the counts. If granted, it follows that there would be no interference-in-fact. Accordingly,
Lagrange could have moved under 37 CFR § 1.633(b) to reach that same result. However, Lagrange
moved under 37 CFR § 1.633(c)(4), and therefore, to establish separate patentability under 37 CFR §
1.601(n), must compare Lagrange reissue claims 1-21, 24-26 and 29 to any other claim whose
designation, in the order declaring interference, as corresponding to the counts is not in dispute (i.e.,
Konrad claims 1-14 and Lagrange patent claims 1-21, 24-28), see 37 CFR § 1.637(c)(4)(ii). Had
Lagrange filed the motion under 37 CFR § 1.633(b), the approach would have been to compare Lagrange
reissue claims 1-21, 24-26 and 29 to all of Konrad's claims 1-14.
9
Page: Previous 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 Next
Last modified: November 3, 2007