Interference No. 103,208
Hoshino et al. v. Tanaka
of the defocus amount, Hoshino may reasonably argue that
Hoshino should get a new chance to oppose Tanaka’s motion for
benefit, while applying the APJ’s view of the count. However,
the APJ made no such determination. Indeed, on page 17 of the
APJ’s decision on preliminary motions, the APJ expressly
stated that he has not construed the count that way, i.e.,
requiring that the
conversion coefficient be corrected by using both the
magnitude and sign of the defocus amount.
In the absence of a contrary determination from the APJ
as to what the count actually requires, Hoshino must oppose or
not oppose Tanaka’s motion for benefit, based on Hoshino’s own
interpretation of the count. What Tanaka allegedly thinks of
the count in the context of another paper, i.e., Tanaka’s
opposition to Hoshino’s motion to redefine the count, has no
bearing on and cannot properly influence whether Hoshino
should, in the first instance, oppose Tanaka’s motion for
benefit.
Furthermore, in opposing Hoshino’s motion to excuse
delay, Tanaka made clear on page 5 of the opposition that it
too does not interpret the count as requiring an apparatus
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