direct us to or explain any evidence of a prior obligation of
Sarles to assign to Kaps-All, we do not find that Sarles had a
prior obligation to assign to Kaps-All prior to the time the
Sarles invention was made.
Herzog fails to provide good cause why judgment should
not be entered against it. The arguments that 1) Herzog
claims 1-9, 11-18 and 20-49 are distinct from the count; 2)
Herzog claims 1-9, 11-18 and 20-49 are of a different
inventive entity; and 3) Herzog is concerned of the effect of
interference estoppel (paper 45 at 3) do not show good cause
as to why judgment should not be entered against Herzog.
As stated above, Herzog had ample opportunity to file a
preliminary motion to designate its claims 1-9, 11-18 and 20-
49 as not corresponding to the count and to file any other
preliminary motion it wished to file. Herzog’s concerns with
the effect of interference estoppel is a result of its own
failure to file preliminary motions within the preliminary
motions phase of this proceeding. Accordingly, it is
ORDERED that judgment on priority as to Count 1
(Paper 1 at 47), the sole count in the interference, is
awarded against junior party Kenneth J. Herzog and William
Sarles.
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