Interference No. 101,981
prosecuted without consent from the APJ and therefore Qadri should disclaim the patent or
judgment should be entered against Qadri in the present interference under 37 C.F.R. § 1.616.
Qadri has filed an opposition (paper no. 246) and Beyers has
filed a reply (paper no. 247) and attached to it a declaration
from Beyers’ counsel (paper no. 248).
In their opposition, Qadri directs attention to their
Preliminary Motions of March 14, 1989 (paper no. 39, p. 15)
wherein they state that they elected to prosecute the process
claims restricted out of the Serial No. 158,483 application.
Therefore, according to Qadri, all parties and the APJ were aware
of Qadri’s decision to prosecute the process claims. However,
argues Beyers, the record does not show that the APJ consented to
Qadri’s decision.
“The party Beyers does not wish to engage in an argument as
to whether or not the Examiner-in-Chief in fact gave his
consent to the prosecution of the Qadri divisional
application. The record does not show that he did, but
fortunately, the Examiner-in-Chief at the time of the filing
of the divisional application on December 30, 1988, is still
the Examiner-in-Chief in the present interference, and he
knows what he did. If he did give his consent, he can simply
deny the present motion. If he did not give his consent, it
is respectfully requested that the present motion be
granted."
We have carefully considered the parties’ positions. We
dismiss the motion for the following reasons.
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