determine whether a broader count3 would be necessary if the
preliminary motion were to be granted. We will note that
Rohrmann has not conceded priority of subject matter as broad as
Rohrmann claim 5 and that it would be only fair to permit
Rohrmann to contest priority on the broader invention defined by
Rohrmann claim 5 if it were to be added to the interference.
Our denial of relief in this interference is without
prejudice to Alt seeking to invoke other remedies which may be
available to seek cancellation of Rohrmann claim 5, e.g., a
request for a reexamination. We express no views on the
appropriateness, or the merits, of other possibly available
remedies.
D. Order
Upon consideration of the record, and for the reasons given,
it is
ORDERED that Alt Preliminary Motion 1 is denied.
FURTHER ORDERED that judgment on priority as to Count 2,
the sole count in the interference, is awarded against junior
party JURGEN ROHRMANN.
3 E.g. (material in bold added and material in brackets and strikeout
deleted, vis-a-vis Count 2):
A method according to any of claims 5 or 6 [claim 6] of Rohrmann
patent 5,391,789, or
a method according to any of claims 78 and 90 and 96 of Alt application
09/197,761.
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