Interference No. 103,036
of written description. The motion is denied for the reasons set
forth above in the denial of items 5, 6, 8, and 12, supra.
In summation, the Cataldi et al. motion no. 3 is denied
with respect to the Burroughs et al. patent claims 1 to 11 and
reissue claims 13 to 16, 18 to 20, 22 to 30, 32, 33, 35 to 37, 39
to 46, 48, 49 and 51 and is granted with respect to the Burroughs
et al. reissue claims 17, 21, 31, 34, 38, 47 and 50. Judgment as
to these latter claims is deferred to the next final hearing,
since we do not enter a piecemeal judgment with respect to a
party.
Issue (5)
The party Cataldi et al.'s opening brief requests that
we decide whether the party Burroughs et al.'s reissue claims 1
to 51 are unpatentable on the ground of double patenting, as
urged in motion no. 23.
The motion is dismissed as to reissue claims 1 to 11.
37 CFR § 1.633(a) authorizes a party to file a preliminary motion
for judgment against an opponent's claim designated to correspond
to a count. Since reissue claims 1 to 11 have not been
designated to correspond to count 1, these claims are not a part
of the interfering subject matter. Perkins v. Kwon, 886 F.2d
325, 327, 12 USPQ2d 1308, 1310 (Fed. Cir. 1989) ("The
implementing rules provide not only for the threshold
determination under 37 C.F.R. § 1.603 or § 1.606 that the
-62-
Page: Previous 132 133 134 135 136 137 138 139 140 141 142 143 144 145 146 Next
Last modified: November 3, 2007