Interference No. 103,036
Preliminary Matters
I
On page 62 of its opening brief, the party Tucholski
makes a qualified admission that its claims corresponding to the
count are unpatentable over the relied upon prior art. However,
37 CFR § 1.637(a) does not provide for any qualified admission
but rather presumes that the prior art cited in a motion is
applicable to the moving party unless there is included with the
motion an explanation as to why the prior art does not apply to
the moving party. Nowhere does the party Tucholski's brief or
the party Tucholski's underlying preliminary motion for judgment
explain how the party Tucholski's claims corresponding to the
count are patentable over the cited references.
The foregoing lack of explanation as required by 37 CFR
§ 1.637(a) constitutes an admission that the cited references
disclose (35 U.S.C. § 102) or render obvious (35 U.S.C. § 103)
the party Tucholski's claims corresponding to the count. See
Guglielmino v. Winkler, 11 USPQ2d 1389 (Bd. Pat. App. & Int.
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