Lastly, we note that Okajima argues that Bourdeau claim
17 is unpatentable under 35 U.S.C. § 112, since Bourdeau claim
17 is a duplicate of Bourdeau claim 14. (Paper 51 at 34). In
response, Bourdeau states that it will cancel claim 17.
(Paper 53 at 21). We construe that response as an agreement
that claim 17 is a duplicate and thus is unpatentable.
Therefore, we grant Okajima’s motion for judgment against
Bourdeau’s claim 17.
For the foregoing reasons, Okajima’s motion for judgement
against Bourdeau’s claim 17 as being unpatentable is granted.
Okajima’s motion for judgment against Bourdeau’s claims 13-16,
18-24 and 26-28 as being unpatentable is denied.
Bourdeau’s Motion to Exclude Evidence
Bourdeau moves to suppress Okajima’s exhibits OX9-OX12.
Okajima does not rely on its exhibits OX10-OX12 to support its
argument that Bourdeau’s claims 13-24 and 26-28 are
unpatentable. Rather, Okajima’s exhibits OX10-OX12 are relied
upon in its discussion of why Bourdeau’s claims 13-24 and 28
properly correspond to the count. Whether Bourdeau’s claims
13-24 and 28 should correspond to the count is not an issue
before us and therefore we need not consider whether Okajima’s
exhibits OX10-OX12 should be suppressed.
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