Interference No. 103,272
parte prosecution concerning the correlation of Kasha Index measurements with molecular
weight. Since the party Okamoto is estopped from arguing a best mode failure due to the
Kasha Index measurements, we need not consider issue (4).
Issue (6) is not entitled to any consideration. The party Okamoto did not file
a preliminary motion for judgment on the ground that the party Heuschen's involved
application lacks an enabling disclosure for its involved claims corresponding to the count.
See 37 CFR § 1.655(b) which states:
A party shall not be entitled to raise for consideration at final
hearing any matter which properly could have been raised by a
motion under § 1.633 or 1.634 unless the matter was properly
raised in a motion that was timely filed by the party under
§ 1.633 or § 1.634 and the motion was denied or deferred to
final hearing. . . .
Nor has the party Okamoto shown good cause why the issue was not properly raised by a
timely filed motion. Accordingly, we will not consider this issue.
Each party’s motion to suppress concerns whether certain evidence relied
upon by its opponent should not be given consideration. To the extent that we rely upon the
evidence complained of, we will address the objection presented in the party’s motion.
Thus, the only issues entitled to consideration are issues (1) and (2)
concerning the count, issue (3) concerning the party Heuschen’s priority case, issue (5)
with respect to best mode concerning pH equilibration, and issues (7) and (8) to the extent
that we rely upon any complained of evidence.
ISSUES (1) AND (2) - THE COUNT
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