Interference No. 103,036
application and patent were involved in this interference whereas
the Burroughs et al. patent was not. As a result of the
conference call, Judge Smith redeclared the interference (Paper
No. 51, mailed September 14, 1994) by adding the Burroughs et al.
patent.
To have the Burroughs et al. patent added to the
interference, one or more of its claims had to be directed to the
same patentable invention as all the parties' claims then
corresponding to the count. At the time of the conference call,
by requesting that the Burroughs et al. patent be added to this
interference, counsel for Cataldi et al. was representing that
the claims of the Burroughs et al. patent were directed to the
same patentable invention as all the parties' claims then
designated as corresponding to the count. Counsel for the party
Burroughs et al. did not oppose the addition of the Burroughs et
al. patent to this proceeding.
The party Cataldi et al.'s present position in its main
brief is inconsistent with its position taken during the
conference call. A party’s change in position, such as here, is
considered improper, especially where the party obtains a
judicial benefit on its previous position. Cf. Bosies v.
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