Interference No. 104,490
file in this proceeding a copy of the decision and mandate
of the Court of Appeals for the Federal Circuit from the
appeal taken in Interference Number 103,675 immediately
after the court issues its decision and mandate.
On October 22, 2003, the Court of Appeals for the Federal
Circuit rendered its opinion in Chen et al.'s appeal (Appeal
Number 03-1037). Therein, the Court affirmed the Board's decision
awarding priority to the senior party, Bouchard et al. On
November 20, 2003, Chen et al. complied with the APJ's order and
filed in this proceeding a copy of the Court's decision and
mandate from Interference Number 103,675.
Accordingly, by operation of 35 U.S.C. § 135(a ) 3 , when the
court affirmed the Board's decision awarding judgment to Bouchard
et al. in Interference 103,675, claims 1 through 11 of Chen et
al.'s involved patent were canceled. Therefore, Chen et al. no
longer have any valid, enforceable claims in their involved
patent in this proceeding. As the APJ stated in his order to show
cause:
there is no longer any basis on which Chen et al. could
contest priority of invention in this proceeding nor is
there any reason to permit Chen et al. to pursue any other
issues against Hester et al. using the interference rules.
We recognize that when this interference was declared, because
Chen et al. had enforceable claims in an unexpired patent which
"interfered" in the sense of the statute and 37 C.F.R. § 1.601(j)
with certain claims of Hester et al., Chen et al. were authorized
3 See, also, 37 C.F.R S 1.663.
3
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