time for filing a preliminary motion. (Paper 43). There is
no indication that the parties agreed to extend the time for
filing preliminary motions beyond the February 15, 2001 date.
Still further, Herzog has failed to comply with the
requirements under 37 CFR § 1.637(a) and (c)(4); the
requirements for demonstrating that a moving party is entitled
to the relief sought for undesignating claims as corresponding
to the count.
For the above reasons, we have considered Herzog’s
arguments as to why its claims 1-9, 11-18 and 20-49 should not
be designated as corresponding to the count only to the extent
necessary to provide the above discussion. Otherwise,
Herzog’s arguments as to why its claims 1-9, 11-18 and 20-49
should not be designated as corresponding to the count have
not been considered on the merits.
Herzog has filed a terminal disclaimer with its response,
“to remove any question of patentability over the count.”
(Paper 45 at 1). Apparently, Herzog is under the impression
that the terminal disclaimer renders any rejections that can
be made between the Sarles and Herzog applications moot.
However, Herzog has directed us to no supporting
authority, nor has Herzog provided a sufficient explanation
that demonstrates that a terminal disclaimer is effective to
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Last modified: November 3, 2007