Interference No. 103,036
USPQ at 170; and Fredkin v. Irasek, 397 F.2d at 346, 158 USPQ at
284. No such showing was made by the party Tucholski.
Accordingly, the Tucholski brief is dismissed insofar as it
raises the matter of the unpatentability of the party Burroughs
et al.'s claims over Sterling in view of the prior art BatCheck®
tester.
Even if this matter were timely raised in a preliminary
motion, the motion would have been denied for the reasons set
forth in our opinion re: issue (1), infra.
IV
In view of the foregoing, the only issue on
patentability over prior art entitled to consideration is ground
E to the extent indicated above in Section III.
Issue (1)
The brief urges in ground E that the party Burroughs et
al.'s claims corresponding to the count are obvious under
35 U.S.C. § 103 over Sterling, U.S. Patent No. 1,497,388 in view
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