Interference No. 101,981
Parties’ Positions
All the parties agree (BaB paragraph bridging pp. 19-20; BeB 5-6; QB 3-4 and 61-62)
that the subject matter of the count - AB2Cu3Oy - comes in two crystalline forms, a
nonsuperconductive tetragonal and superconductive orthorhombic form. Furthermore the
superconductivity of the orthorhombic form is influenced by the distribution of oxygen in the
structure. When the oxygen level corresponds to y.7.0 in the 1-2-3 formula, the
transition temperature at which the material superconducts is at
its highest. The dispute is whether “90% purity” means the
composition must be purely an “orthorhombic form” or more
particularly the “orthorhombic form where the oxygen content
corresponds to y.7.0”.
Beyers’ position is that the count requires the oxygen
content to correspond to y.7.0. Their position is summarized by
this statement from their brief (BeB 6):
For purposes of this patent interference, it is especially
important to note that only well-ordered, homogeneous samples
with oxygen contents between y = 6.8 and 7.0 can meet the 90%
purity requirement of the count, i.e., at least 90% of the
material can sustain zero resistance at 70 K or above.
Qadri’s position (QB 61-62) is the same as that of Beyers:
In particular, the invention must be “essentially single
phase . . . having a purity of at least 90%.” It is submitted
that this means “greater than 90% of the sample is capable of
exhibiting the property of zero resistance at a temperature
of at least . . . 70K . . . .” BER 509, ¶6. In other words,
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