Interference No. 103,197
question remains whether and, if so, how count should be
changed.
Mannheimer contends that Count 5 is also unpatentable
over Kapany's teaching of performing I-I oximetry on tissue
and that for this reason judgment should be entered against
Buschmann's claim 28 on the ground of unpatentability and that
the interference should be redeclared by replacing Count 5
with Buschmann’s proposed O-I Count 2 and I-O Count 4, or with
Mannheimer’s proposed Count MAN-3, which recites these two
species in the alternative. Because, as explained above,53
Kapany does not suggest performing I-I oximetry on tissue,
Mannheimer's request to replace Count 5 with Buschmann’s
proposed Counts 2 and 4 or with Mannheimer’s proposed Count
MAN-3 is denied. Furthermore, the absence of a request by
Mannheimer to enter judgment with respect to the proposed
counts suggests Mannheimer incorrectly believes that
subsequent to such a redeclaration the parties would be
permitted to present new priority evidence or new briefs with
respect to the newly adopted counts. As the proposed counts
were the subject of motions filed during the preliminary
Mann.Open.Br. 22.53
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