AUSNIT V. INAGAKI - Page 7




          Interference No. 103,640                                                    



          issued an interim rule change of patent interference rule 37 CFR            
           1.655(a).  64 FR 12900.  The rule deals with the application              
          of the abuse of discretion standard by a merits panel when                  
          considering an interlocutory order entered by a lone APJ acting             
          in an interlocutory capacity.  The rule has been changed to                 
          emphasize that a panel of the Board will resolve the merits of an           
          interference as a panel without deference to any interlocutory              
          order.  Panels will, however, continue to apply the abuse of                
          discretion standard but only with respect to procedural matters             
          decided by the lone APJ acting in an interlocutory capacity.                
          Accordingly, we consider the substantive issues dealt with by the           
          APJ in his interlocutory capacity and raised by the parties in              
          their briefs, giving them de novo consideration in this decision.           
                    With regard to the date of effectiveness of the interim           
          rule, the interim rule notice states that the amended rule is               
          effective as of the date of publication, viz., March 16, 1999.              
          Accordingly, the review of the APJ’s decisions on the preliminary           
          motions has been decided in the following decision without                  
          deference to the prior decision by the lone APJ.  It is noted               
          that both parties have briefed and argued the issue under the               
          abuse of discretion standard.  However, the standard of review              
          instituted by the interim, and now final, rule has been used by             
          the panel in rendering this decision.                                       

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