Interference No. 103,587
The interference was declared on September 12, 1995, with count 1 corresponding
exactly to Katayama claim 32, and Levien patent and reissue claims 6.
During the period set for filing preliminary motions, Katayama filed a preliminary
motion for judgment under 37 CFR § 1.633(a) on the ground that Levien’s involved claims are
unpatentable to Levien by virtue of Katayama U.S. Patent No. 5,325,448 under 35 U.S.C.
§ 102(e).
Levien filed two preliminary motions in the period provided. The first is a motion for
judgment on the ground that Katayama’s claims 32-41, 44-47 and 53-55 are unpatentable to
Katayama for lack of support under 35 U.S.C. § 112, first paragraph. In support of this motion,
Levien presented two declarations by Gonzalo Arce (Levien Record at 1-26) and Levien Exhibits
L-1 to L-7 (LX 1-7). In opposition, Katayama presented a declaration of Tadashi Yoshida
(Katayama Record at 1-20) and Katayama Exhibits K-2 to K-10 (KX 2-10). The second
preliminary motion is for judgment on the ground that Katayama’s claims 42, 43, 48 and 49 are
unpatentable to Katayama under 35 U.S.C. §§ 102 /103 over Fawcett et al. (Fawcett).
In an order dated August 27, 1996 (Paper No. 38), the Administrative Patent Judge (APJ)
deferred a decision on the three preliminary motions to final hearing.
Issues
In its brief filed March 4, 1997, Levien presented the following issues:
1. Whether the existence of the computer program code WAVY.BAS (LX-10) on
November 12, 1987, combined with related testimony, establishes priority of
invention by Levien by a preponderance of the evidence.
3
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