Interference No. 103,036
interfering subject matter is patentable to both parties, but
that after an interference is declared a party may move for
judgment on the ground that the interfering subject matter is not
patentable to the opponent. 37 C.F.R. § 1.66(a).") Thus this
motion is clearly improper as to reissue claims 1 to 11.
Since we entered the party Burroughs et al.'s amendment
in our decision on Issue (3), supra, we will consider motion no.
23 as it relates to reissue claims 13 to 16, 18 to 20, 22 to 33,
35 to 37 and 39 to 51.
A copy of the motion appears at CR 1664 to 1670.
During ex parte prosecution of the party Burroughs et al.'s
reissue application, the examiner rejected the reissue claims on
the ground of obviousness-type double patenting over claims
pending in three later filed applications. In response to the
rejection, the party Burroughs et al. filed in accordance with
37 CFR § 1.321 terminal disclaimers in each of the three later
filed applications disclaiming the terminal portion of the term
of any patent granted on each of these later filed applications
subsequent to the expiration date of the party Burroughs et al.'s
involved U.S. Patent No. 5,015,544. In withdrawing the
rejection, the examiner stated, in part:
Since this [reissue] application, if matured
into a patent, cannot exceed the enforceable
term of the original patent, the term of any
patent issuing hereon cannot exceed the term
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