do. The APJ did express to the parties that if a response to
the Order to Show Cause was not received within the deadline
(February 28, 2001), then judgment could be entered against
junior party Herzog.
On February 28, 2001, Herzog filed a paper entitled
“PARTY HERZOG RESPONSE TO ORDER TO SHOW CAUSE” (paper 45).
Party Herzog states that it opposes the Order to Show Cause
“unless prior to entry of judgment (against junior party
Herzog), claims 1-9, 11-18 and 20-49 of the involved Herzog
application 09/138,159 are designated as not corresponding to
the count.” (Paper 44 at 1). Herzog, along with its response
to the Order to Show Cause, has filed a terminal disclaimer.
Herzog states that the settlement agreement establishes that
Party Sarles obligated to assign their involved 08/964,159
application to Kaps-All at the time the invention was made.
(Paper 45, para. 12 at 3).
B. Discussion
Kaps-All, as the common assignee of the involved
applications, was under an Order to Show Cause why adverse
judgment as to the subject matter of the count should not be
entered against junior party Herzog. (Paper 41). In its
response to the Order to Show Cause, Herzog agrees that
judgment against it is appropriate, if we decide to designate
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Last modified: November 3, 2007