Interference No. 101,981
preliminary motion but by raising the enablement issue in their brief, we presume that is what
Beyers intended.
Qadri (paper no. 39) moved for judgment against Batlogg on two patentability issues:
enablement (motion Q5) and best mode (motion Q6). With respect to preliminary motion Q5,
Qadri (p. 13) states that, among other grounds, Qadri “joins in the two grounds based on failure
to meet the requirements of 35 USC §112”. The two grounds are Batloggs’ disclosure of a
misdescribed crystalline structure and lack of disclosure to a teaching of slow cooling. Qadri,
however, never mentions the written description requirement. In fact, Qadri (p. 3) entitled the
motion as a motion “for judgment … because Batlogg application … does not contain an
enabling disclosure…”. Furthermore, in the decision on motions, the APJ (paper no. 131, p. 2)
described motion Q5 as a motion for judgment “on the ground that ‘the count’ is not patentable
to Batlogg under 35 USC 112 (nonenablement)…,” not on the ground of a lack of written
description. All indications are that Qadri moved for judgment on nonenablement grounds, and
not on written description grounds. We therefore read Qadri’s preliminary motion Q5 as directed
solely to the nonenablement issue.
Qadri’s brief is clear in raising best mode, written description and enablement issues, and
seeking review of their preliminary motions. Qadri has also filed a belated motion for judgment
against Batlogg for failing to disclose a best mode (paper no. 241).
We have therefore determined that:
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