Interference No. 103,605
No issue of interference-in-fact has been raised in this
proceeding.
OPINION
The sole issue before us7 is whether Yamada claims 1 and 4
are unpatentable under 35 U.S.C. § 102(a) or 35 U.S.C. § 103 in
view of either Aggarwal et al. (AX-2) or Pennica et al. (AX-3).
Yamada claim 4 is a dependent claim, and its patentability
is not separately argued from that of claim 1. Accordingly,
claim 4 stands or falls with claim 1, and we will limit our
consideration to claim 1, which reads as follows8:
6(...continued)
exhibit number. Similar abbreviations will be used when
referring to the record, exhibits and brief of Yamada (YR, YX,
YB).
7 Aggarwal also argues that Yamada’s involved U.S. application
fails to provide sufficient written description support for
Yamada claim 1. Although no statutory basis for this position is
expressly cited by Aggarwal, it is couched in terms reflecting
the provisions of 35 U.S.C. § 112. However, the issue of whether
the Yamada U.S. application is in compliance with the
requirements of 35 U.S.C.
§ 112 is not before us since the issue has not been raised in a
proper or timely manner. In this regard, Aggarwal’s sole
preliminary motion (Paper No. 22) fails to clearly and precisely
state that this issue, in particular, is a basis upon which
relief is requested as required by 37 CFR § 1.637(a). Rather,
the motion (pages 1; 26) focuses exclusively upon 35 U.S.C. § 102
and 35 U.S.C. § 103 as the ultimate statutory basis for a finding
of unpatentability.
8 We note here that the first portion of the count happens to
(continued...)
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