Interference No. 103,036
We agree with the party Burroughs et al.'s opposition
that the party Tucholski had sufficient evidence available to it
several months prior to the time of cross-examination which
showed that the BatCheck® was a label with an integral battery
tester. See the declarations submitted by the party Tucholski
under 37 CFR § 1.672(b). Whether or not an admission was made by
Dr. Feder is of no legal consequence against the party Burroughs
et al., since Dr. Feder was a witness for the party Cataldi et
al. An admission, if made, by Dr. Feder would be binding upon
the party Cataldi et al. and not on the party Burroughs et al.
See Fed. R. Evid. 801(d)(2).
Even if the motion were considered to have been timely
filed, the motion would have been denied. As we noted above, the
BatCheck® device is identical to the device disclosed in Parker
'020. The motion urges that the BatCheck® device anticipates
Burroughs et al.'s label claims 16, 18, 20, 22 to 24, 26, 28, 29,
33, 35 to 37, 39, 41, 42, 44, 46 and 48 to 50. Anticipation
requires that all the elements of the claimed invention be
described in a single reference. In re Spada, 911 F.2d at 708,
15 USPQ at 1657. Since the BatCheck® device, which is equivalent
to the Parker '020, does not contain a switch, it cannot
anticipate the foregoing claims. Nor would the BatCheck® in
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