NICHOLS et al. V. TABAKOFF et al. - Page 3




             Interference No. 104,522 Paper108                                                                          
             Nichols v. Tabakoff Page 3                                                                                 
                    We award judgment against Nichols. Nichols' evidence is insufficient to prove                       
             (1) that Nichols actually reduced the invention to practice before Tabakoff's effective                    
             filing date, (2) that Tabakoff derived the invention from Nichols, (3) that Nichols is a joint             
             inventor of Tabakofrs involved claims, or (4) that Tabakoff acted inequitably before the                   
             PTO. Since priority is not awarded to Nichols, the issue of whether the Nichols patent                     
             violated the best mode requirement of 35 U.S.C. § 112, T 1 is moot.                                        


             II. Background                                                                                             
             1 . Nichols is involved in this interference on the basis of U.S. Patent 5,783,700                         
             ("Nichols '700," Ex 2009), granted July 21, 1998, based on application 08/887,627, filed                   
             July 3, 1997.                                                                                              
             2. Nichols' real party-in-interest is the named inventors.                                                 
             3. Tabakoff is involved in this interference on the basis of application 09/171,697,                       
             filed October 23, 1998 ("Tabakoff '697," Ex 2011). Tabakoff '697 has been accorded                         
             benefit for the purpose of priority of the June 6, 1997 filing date of its U.S. provisional                
             application 60/048,848 (Ex 1006).                                                                          
             4. Tabakoff's real party-in-interest is LOHOCLA RESEARCH CORPORATION.                                      
             5. The subject matter of the interference is defined by one Count, i.e., a compound                        
             according to any of claims 1 or 15 of Nichols or a compound according to claim 12 of                       
             Tabakoff.                                                                                                  











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