Interference No. 103,435
In the final brief of the Senior party Blake argues that
the Administrative Patent Judge (“APJ”) should have decided
the Senior party’s 1.642 motions (Papers Nos. 25 and 26) to
add Christ U.S. Patent No. 5,262,097 and U.S. Patent No.
5,344,449 to this interference. The APJ dismissed the motion
(Paper No. 77) and a panel of the board denied a Request for
Reconsideration (Paper No. 81). The Senior party requested
certification to petition the Commissioner but this was also
denied (Paper No. 79). The Court of Appeals for the Federal
Circuit dismissed a mandamus action.
We initially note that 37 CFR § 1.635 states:
A party seeking entry of an order relating
to any matter other than a matter which may
be
raised under § 1.633 or § 1.634 may file a
motion requesting entry of the order.
The Senior party’s 1.642 request to have two Christ patents
added to the interference seeks the entry of an order and as
such the request is a motion. Further, the addition of the
Christ patents is not a matter which may be raised under §
5
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