Interference No. 103,724
added to the Boller application to correspond to the count. Maier v. Hanawa, 26 USPQ2d
1606, 1609 (Comm’r. 1992) [The “same patentable invention” requirement of 37 C.F.R. §
1.637(c)(3)(ii) concerns only the relationship between the Count and the claims sought to
be additionally designated. It does not concern general patentability over the prior art].
Claims 76-87, additionally designated, have not been examined. Accordingly, we take no
position on Boller’s entitlement to claims 76-87 and also refer the matter to the Primary
Examiner for appropriate action.
Boller et al., the junior party, have filed, pursuant to 37 CFR § 1.662(a), a
concession of priority with respect to the invention defined by count 3 (Paper No. 86),
which concession is treated as a request for entry of an adverse judgment as to all the
claims which correspond to count 3 in this interference.
Accordingly, JUDGMENT as to the subject matter of the count 3 is hereby awarded
to Bernardus J.C. Cornelissen and Leo S. Melchers, the senior party and against Thomas
Boller, Jean-Marc Neuhaus and John Ryals, the junior party. On this record, Cornelissen
et al. are entitled to a patent containing claims 88-89 corresponding to count 3 and Boller
et al. are not entitled to claims 55-61 corresponding to count 3.
In the initial Interference Memorandum, the primary examiner indicated that claim 39
was not examined. Accordingly, we take no position on Cornelissen et al.
3
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