Interference No. 103,197
(5) whether Morrison and Yue have demonstrated they are25
entitled to an award of judgement on the issue of priority.
C. The alleged unpatentability of Buschmann's claims over
Kapany
The APJ granted Mannheimer's § 1.633(a) motion with
respect to many of Buschmann's invasive non-oximetry claims,
i.e.,
claims that require invasively sticking a radiation emitter or
a radiation sensor into tissue but are not limited to oximetry
of any type (i.e., pulse or non-pulse). These are claims 1-3,
5-7, 12, 14, 19, 29, and 32, which Buschmann has effectively
conceded are unpatentable over the prior art by not seeking
review of this holding by the APJ. However, the APJ denied26
the motion as to some of Buschmann's other invasive non-
oximetry claims (i.e., claims 8, 9, 13, 18, 30, and 35-37) on
the ground that they recite elements not suggested by the
prior art, such as a spiral needle (claim 8). The APJ also
The party Morrison is hereinafter referred to as25
either Morrison or Morrison and Yue. Inventors James Morrison
and Samuel Yue are referred to as Dr. Morrison and Dr. Yue.
As Morrison correctly notes, claim 29 is virtually26
identical to count 5, the scope of which is discussed below.
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