We conclude that entry of summary judgment is appropriate.
The interference was declared on July 10, 2001 (Paper 1).
At that time it was determined that Sever’s showing submitted
under 37 CFR § 1.608(b)1 was insufficient to demonstrate that
Sever is prima facie entitled to judgment relative to Glickman.
An Order to Show Cause under 37 CFR § 1.617(a)2 accompanied the
Notice Declaring Interference (Paper 2). Sever was ordered to
show cause why judgment should not be entered against it.
On August 14, 2001, Sever filed a response to the Order to
1 Rule 608(b) states that:
When the effective filing date of an application is more
than three months after the effective filing date of a
patent, the applicant, before an interference will be
declared, shall file evidence which may consist of patents
or printed publications, other documents, and one or more
affidavits which demonstrate that applicant is prima facie
entitled to a judgment relative to the patentee and an
explanation stating with particularity the basis upon which
the applicant is prima facie entitled to the judgment.
2 Rule 617(a) provides that:
An administrative patent judge shall review any evidence
filed by an applicant under § 1.608(b) to determine if the
applicant is prima facie entitled to a judgment relative to
the patentee...
If in the opinion of the administrative patent judge the
evidence fails to show that the applicant is prima facie
entitled to a judgment relative to the patentee, the
administrative patent judge shall, concurrently with the
notice declaring the interference, enter an order stating
the reasons for the opinion and directing the applicant,
within a time set in the order, to show cause why summary
judgment should not be entered against the applicant.
2
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