Interference No. 103,036
Issues (5 and 6)
As we noted above (see Issue 1, Preliminary Matters,
Section I), any issue of patentability of the parties' claims
over prior art will only be considered insofar as it relates to
the claims of the party Burroughs et al. Accordingly, the
miscellaneous and preliminary motions are dismissed insofar as
they urge that the claims of the parties Wang et al. and Cataldi
et al. are unpatentable over prior art.
The miscellaneous motion (Paper No. 665) requests that
the belatedness of the second preliminary motion for judgment be
excused, since the preliminary motion could not have been filed
earlier. It is urged that the evidence in support of the motion
was not available until the cross-examination of Dr. David O.
Feder was taken. During cross, Dr. Feder testified that if the
BatCheck® device were on a piece of paper, then the BatCheck®
would be "a label with an integral battery tester." The motion
states that at that time, counsel for the party Tucholski evinced
that the commercially available BatCheck® device (TX 1 and
Tucholski's Cross Exhibit 47A (TCX 47A)) "meets all the
limitations of the count" and recognized at that time that the
BatCheck® device anticipated many of the claims corresponding to
the count. The miscellaneous motion is denied.
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