Interference No. 103,357
1994 with count 1. At that time, Owen was accorded senior party status on the basis of the
December 6, 1991 filing date of prior U.S. application S.N. 07/803,036, now U.S. Patent
5,204,774 (‘774 patent).
On September 21, 1994, the Administrative Patent Judge (APJ) rendered a
decision on preliminary motions. In that decision, a motion of Phillips under 37 CFR
§ 1.633(a) for judgment against the party Owen on the grounds of unpatentability of all of its
involved claims based on a lack of written description under 35 U.S.C. § 112, first paragraph,
was granted, and a motion of Phillips under 37 CFR § 1.633(a) for judgment on the grounds of
unpatentability based on a failure of Owen to disclose its best mode of practicing the invention
under 35 U.S.C. § 112, first paragraph, was denied.
In view of the finding of unpatentability of all of Owen’s corresponding claims,
notice was given pursuant to the provisions of 37 CFR § 1.640(d) that judgment on the record as
to those claims will be entered against the senior party Owen unless it shall show cause why
such action should not be taken. In response, Owen requested final hearing to review the grant
of Phillips’ motion under 37 CFR § 1.633(a) for judgment on the ground that the senior party’s
involved claims are unpatentable to it under 35 U.S.C. § 112, first paragraph, due to lack of
written description of the invention in its involved application. The request of Owen was granted.
However, a motion of Owen requesting a testimony period with respect to the decision on the
granted motion was denied.
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