and 104,513 by hereby canceling claims 41, 66 and 81 in U.S.
Serial No. 08/442,522, the only Tomes claims which correspond to
Count 2."
Murry has filed a paper entitled "MURRY ABANDONMENT OF
CONTEST AND CONCESSION OF UNPATENTABILITY UNDER 37 C.F.R.
§ 1.662" (Paper 32). In the paper, Murry states that it
"hereby abandons the contest as to Count 1 in the present
interference and concedes that the subject matter of Count 2 is
not patentable to either party in the interference." Murry
states that it is expressly abandoning its involved 08/437,488
application.
When a party either (1) concedes unpatentability of the
subject matter of a count or (2) abandons the contest as to a
count, the concession or abandonment is treated as a request for
entry of an adverse judgment against the party as to all the
claims that correspond to the count. 37 CFR § 1.662(a).
Accordingly, (1) the statement by Tomes (Paper 30) is treated as
a request for adverse judgment as to count 2, and (2) the
statement by Murry (Paper 32) is treated as a request for
adverse judgment as to both counts 1 and 2.
Claims of an involved application may be amended during the
interference only if a preliminary motion under 37 CFR §
1.633(c) is granted. Since Tomes did not file a preliminary
motion under § 1.633(c) to amend its claims and accordingly, no
such preliminary motion was granted, it would be inappropriate
to cancel Tomes claims 41, 66 and 81 at this time.
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