Interference No. 103,625
motions 1-11 (items 6-16 in Paper No. 80). Matters not raised in brief are deemed to
have been abandoned. Photis v. Lunkenheimer, 225 USPQ 948 (Bd. Pat. Int. 1984).
Accordingly, issue 1 is deemed moot not having been raised in the briefs of
either party.
IV.
Issue 2
Patentability of LeMaire claims 1-3
We hold that LeMaire claims 1-3 are unpatentable under 35 U.S.C. §§ 102
or 103 over Engelmann because, on this record, the party LeMaire has not sustained its
burden of establishing, by a preponderance of evidence, that their earlier filed German
applications satisfy the first paragraph description requirement of 35 U.S.C. § 112, for the
full scope of the claims (emphasis added).
By not arguing the merits of the prior art reference relied on in the preliminary
motion for judgment, LeMaire conceded that their claims 1-3 are anticipated under 35
U.S.C. § 102 or would have been rendered obvious under 35 U.S.C. § 103 over
Engelmann. Fiddes v. Baird, 30 USPQ2d 1481, 1482 (Bd. Pat. App. & Int. 1991).
However, LeMaire remain of the position that Engelmann is not available as prior art
against them because LeMaire are entitled to the filing dates, May 9, 1989 and July 5,
1989, respectively, of their earlier filed German applications, P39 15 072 and P39 22 089.
It is Wallach’s position that LeMaire is not entitled to benefit of those dates
with respect to the invention of the claims, because the German applications do not
8
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