Interference No. 101,981
respect to Batlogg’s application during the preliminary motion
period.
Beyers’ brief (BeB 42-46), however, vaguely states that
Batlogg “fails to meet the requirements of 35 USC 112”. We are
never told which requirement Batlogg fails to meet. Beyers (BeB
46) raises three grounds: Batlogg’s failure to teach the slow
cooling step which is the same ground as was presented in their
preliminary motion; Batlogg’s mischaracterized tetragonal
structure which, since it is discussed (BeB 43) only in the
context of enablement23, is not the same ground as was presented in their preliminary
motion with respect to written description; and, newly added grounds that Batlogg’s conclusions
were reached by using commingled data. Since Beyers’ brief does not discuss the one ground
(i.e., Batlogg misdescribes the tetragonal structure) that Beyers’ preliminary motion used to
support raising the written description issue, we read Beyers’ brief as directed solely to the
enablement requirement. We note that Beyers does not explicitly request a review of their
23 The mischaracterization is mentioned in Beyers’ brief but is cast
purely in terms of evidence demonstrating nonenablement. Beyers brief
states (BeB 44-45) that “another fatal defect in the Batlogg application
… is the statement therein … that the compositions are tetragonal … the
party Batlogg, et al. have misdescribed the compositions … the failure to
enable, (i.e., to teach slow cooling) inevitably leads to the failure to
describe compositions that meet the count.” See also Beyers’ brief at 42-
43 where the issue of structure is subsumed in a discussion of making a
90% pure superconductor.
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