Interference No. 104,372
Winker v. Abileah
FURTHER ORDERED that senior party Abileah is
entitled to its application claims 96-102 which correspond to
the count.
FURTHER ORDERED that judgment is entered with
prejudice as to Winker’s involved patent claims 1-7, but that
Winker is free to pursue, in ex parte, before a primary
examiner claims now pending in its reissue application which
limit the first deposited thin-film layer to a positively
birefringent O-plate compensator layer, by arguing that such
claims would not have been obvious over the lost count.
FURTHER ORDERED that nothing in this JUDGMENT UNDER
37 CFR § 1.662(b) should be construed as expressing an opinion
on the patentable distinction or lack thereof between Winker’s
reissue application claims and the subject matter of the
count. The examiner is free to make his or her own
determination in that regard, and that Winker shall bring to
the examiner’s attention the substance of this particular
paragraph.
FURTHER ORDERED that should further prosecution by
Winker of its reissue application result in an appeal to the
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