Interference No. 103,950
Pursuant to 37 CFR § 1.601(n):
Invention “A” is the same patentable invention as an
invention “B” when invention “A” is the same as (35
U.S.C. 102) or is obvious (35 U.S.C. 103) in view of
invention “B” assuming invention “B” is prior art
with respect to invention “A”.
We note at the outset that Nardella has not attempted to
prove that the subject matter recited in claims 4 through 16
is the same patentable invention as the invention of an
involved claim whose designation as corresponding to the Count
1 or Count 2 Nardella does not dispute as required by 37 CFR §
1.637(c)(3)(iii). Rather, Nardella has attempted to prove
that the subject matter recited in claims 4 through 16 is the
same patentable invention as Count 1 or Count 2 or of another
claim not designated as corresponding to either Count 1 or
Count 2. However, in order to advance the resolution of this
interference, we will decide this motion as if Nardella had
properly compared the recitations of Tsuruta’s claims 4
through 16 to Nardella’s claim 35 which is similar to Count 1
and to Nardella’s claim 37 which is similar to Count 2. 1
1The major differences between Nardella’s claim 35 and
Count 1 and Nardella’s claim 37 and Count 2 is that Nardella’s
claims 35 and 37 recite a high frequency means and Counts 1
and 2 recite an electrosurgical means and claims 35 and 37
recite that various elements are provided at the distal end of
the insertion section and Counts 1 and 2 recite that these
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