Interference No. 101,981
Beyers indicates that:
[I]t should be noted that in many cases the issues cited by
the Beyers’ brief are substantially the same as those cited
by the Batlogg brief, for example, the issue of whether or
not Batlogg conceived the invention, the issue of whether or
not Beyers conceived the invention, and the issue of whether
or not Batlogg’s application teaches how to make the
superconductor compositions called for by the count.
When Beyers refers to their “cited issues”, they mean aspects of
the other parties’ cases which they have separately discussed.
Batlogg is unpersuaded (reply; paper no. 237 11).
We observe that Beyers does not disagree with the issues as Batlogg and Qadri have
formulated them. For example, Batlogg’s issue BaI1 (see below) is dealt with at page 6 of
Beyers’ brief. It would appear that Beyers’ “issues” are more collective and responsive in
character, as outlined in the Table of Contents of their Brief (p. I; parts V., VI. And VII.).
Nevertheless, this is not a “Statement of the Issues” in accordance with 37 C.F.R.
§ 1.656(b)(4) and therefore we could require Beyers to file a corrected brief.12 Notwithstanding
11 “The fact that the party Batlogg has complied with 37 CFR 1.656, and
that there is some overlap between the issues as seen by the party Beyers
and the issues as stated by the party Batlogg is totally irrelevant.
There clearly is disagreement about the issues. For instance, the party
Batlogg’s issue A apparently is not considered to be an issue by the
party Beyers.”
12 Though we do not have as severe a situation, as a matter of interest, we note that the U.S. Court of
Appeals for the Second Circuit, granted sanctions where, contrary to Fed. R. App. P. 28, appellant’s
main brief did not articulate the issues appellant intended to raise. The Ernst Haas Studio Inc. v.
Palm Press Inc., 164 F.3d 110, 112, 49 USPQ2d 1377, 1379 (CA2 1999).
11
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