Interference No. 103,036
final hearing in order to participate in the priority phase of
the interference. The party Tucholski states that it has a
vested interest in prevailing or, if that is impossible, in
ensuring that none of the other parties receives a patent on the
subject matter at issue. The party Tucholski contends that if it
and the party Cataldi et al. are "prematurely eliminated" from
the interference after the first final hearing and the party Wang
et al. receives a patent without their ever having been afforded
an opportunity to contest the party Wang et al.'s 102(g)
priority, then the party Wang et al. will be in a position to
require the parties Tucholski and Cataldi et al. to unfairly pay
royalties and to sue them for infringement. The request is
denied.
It is not unjust to eliminate a junior party from a
multi-party interference where that party's claims are
unpatentable to the party. See Qadri v. Chu, 18 USPQ2d 1254 (Bd.
Pat. App. & Int. 1990), aff'd. w/o memo. In this case, the
junior party Tucholski has lost the priority contest vis-à-vis
the senior party Burroughs et al. and is not entitled to any of
its claims corresponding to the count. Even if the junior party
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