Interference No. 103,036
make question at one hearing and priority of invention at a later
hearing.
Opinion re: Issue 3(i)
The party Tucholski's position is not well taken.
While the Espenschied and Hewitt decisions are relevant to
interference practice over a half century ago, the practice has
changed substantially; more issues can be reviewed at final
hearing. The statute, 35 U.S.C. § 135(a), authorizes the Board
to consider issues of priority of inventions and patentability,
whereas prior to the 1985 amendment of the statute, the Board
only considered priority of inventions and matters ancillary
thereto.
During the motions period in this interference, the
parties filed 91 preliminary and miscellaneous motions and
requests together with associated oppositions, replies and
comments. The rules in effect at the time that the Espenschied
and Hewitt decisions were rendered did not contemplate the filing
of such a vast array of motions.
Pursuant to 37 CFR §§ 1.601 and 1.610(e), an APJ in
charge of an interference is authorized to determine a proper
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