its claims 1-9, 11-18 and 20-49 as not corresponding to the
count.
That Herzog opposes the entry of judgment against it
unless certain of its claims are designated as not
corresponding to the count, does not explain why Herzog is
entitled, at this time in this proceeding, to have us consider
the undesignation of certain of its claims. Herzog has failed
to show good cause why such an argument should be considered.
The appropriate vehicle for a party moving to designate
certain claims as not corresponding to a count is through the
filing of a preliminary motion under 37 CFR § 1.633(c).
Herzog has not filed a preliminary motion under 37 CFR §
1.633(c).
Even if Herzog’s response to the Order to Show Cause is
construed as a preliminary motion under 37 CFR § 1.633(c),
such “preliminary motion” is untimely and fails to comply with
the requirements for demonstrating that Herzog is entitled to
the relief sought. Preliminary motions were to be filed by
February 15, 2001 (paper 43) . Herzog’s response to the Order1
to Show Cause was filed February 28, 2001, 13 days after the
1Herzog and Sarles stipulated to several time changes
for time period 1 (the time for filing preliminary motions),
resulting in Herzog having approximately 7 months to file a
preliminary motion to undesignate claims. No preliminary
motions (from either Herzog or Sarles) were filed.
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Last modified: November 3, 2007