Interference No. 103,272
Issue (1)
Issue (1) concerns the party Heuschen's preliminary motion to substitute
count 2 for count 1, which motion was granted over the party Okamoto's opposition.
In accordance with 37 CFR § 1.601(q), an APJ's decision on a preliminary
motion constitutes an interlocutory order, which, pursuant to 37 CFR § 1.655(a), is
presumed to have been correct with the burden of showing error or abuse of discretion
upon the party attacking the order. Gustavsson v. Valenti, 25 USPQ2d 1401, 1405-06
(Bd. Pat. App. & Int. 1991) and Suh v. Hoefle, 23 USPQ2d 1321, 1326 (Bd. Pat. App. &
Int. 1991). An abuse of discretion occurs if the decision (i) is clearly unreasonable,
arbitrary, or fanciful; (ii) is based on an erroneous conclusion of law; (iii) rests on clearly
erroneous fact findings; or (iv) involves a record that contains no evidence on which the
APJ could rationally base his or her decision. Abrutyn v. Giovanniello, 15 F.3d 1048,
1050-51, 29 USPQ2d 1615, 1617 (Fed.Cir. 1994).
The party Okamoto has not sustained its burden in accordance with 37 CFR
§ 1.655(a) to show that the APJ's decision constitutes an abuse of discretion.
4
The party Okamoto urges that count 2 is unpatentable over prior art, namely,
5
Japanese Patent 62-10541 (OX 14) . The Japanese patent corresponds to Japan Kokai
4
Count 2 is identical to Heuschen claim 1, except for the addition of the alternative
Okamoto expression, "or (b) having a viscosity-average molecular weight in the range from
10,000 to 17,000."
5
In view of our disposition of this issue, the party Heuschen’s motion to suppress with
respect to the Japanese references (OX 13 and 14) is dismissed as moot.
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