Interference No. 101,981
1984). Consequently, Batlogg is not entitled to claims 1-15 corresponding to the count.
We do not direct our attention to the count. In various statements22 made in the briefs, the
junior parties look variously at the count and/or the claims and therefore confuse the issue.
Further consideration of patentability in this interference proceeding requires us to direct our
attention only to the claims and not to the count. In re Van Geuns, 788 F.2d 1181, 1184, 26
USPQ2d 1057, 1059 (Fed. Cir. 1993). The question of patentability is therefore restricted to
Batlogg’s claim 16.
superconductivity in the Y-Ba-Cu-O system on February 27, 1987, prior to any date alleged
in Batlogg’s preliminary statement. Moreover, Batlogg presents no argument that his claims
1-15, which read on multiphase systems, are patentable over his admitted knowledge of
Chu’s prior work; rather, his opposition only urges that ‘at least claim 16’ drawn to single
phase compositions is patentable to Batlogg. Accordingly, [Chu’s] motion is granted to the
extent that claims 1-15 are unpatentable over the admitted prior knowledge of Chu’s work,
and the final decision in this interference will so indicate.”
22 Qadri (QB 62-3) frames one of Batlogg’s patentability problems like
this: “… the invention according to the count for yttrium-barium-cuprate
is essentially pure Orthorhombic I. … the application does not describe
the invention with sufficient detail…”. In another instance, with
respect to Beyers, Qadri (QB 76) states that “[N]ot only does the
application fail to characterize the subject matter of the invention… it
also does not specify tests … [to] determine whether it satisfies the
limitations of the claims and the count.” Beyers does likewise. Under a
section entitled “The Batlogg Application Fails To Meet The Requirements
of 35 U.S.C. § 112” (BeB 42), Beyers states: “In its preliminary motions,
Beyers alleged that when the teachings of the Batlogg application are
followed the product does not meet the requirements of the count…”.
Actually, Beyers’ preliminary motions (paper no. 29) look to Batlogg’s
claims, not the count: “The party Beyers, et al hereby moves for judgment
against the party Batlogg, et al on the grounds that Batlogg, et al’s
claims corresponding to the count in the interference are not patentable
to Batlogg, et al.”
48
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