DAVEY et al. BURG et al. - Page 2




          is no interference-in-fact (Paper 16).  We GRANT the                        
          preliminary motion and enter final judgment.                                


               A.   Findings of fact                                                  
               The record supports, by a preponderance of the evidence,               
          the following findings, as well as any findings set out in the              
          discussion portion of this ORDER.                                           
               1.   The count of the interference is the process defined              
          by claim 1 of the Davey patent (US 5,554,517 ("'517")) or the               
          process defined by claim 1 of the Burg application (08/427,606              
          ("606")(Paper 1 at 5).                                                      
               2.   The Davey patent contains claims 1-15.                            
               3.   The Burg application contains claims 1-3 and 11-63.               
               4.   Davey claims 1-5, 8, and 11-15 are designated as                  
          corresponding to the count (Paper 1 at 5).                                  
               5.   All of the Burg claims are designated as                          
          corresponding to the count (Paper 1 at 5).                                  
               6.   The process of Davey claim 1 and the process of Burg              
          claim 1 appear to be the same except that the process of Davey              
          claim 1 requires that the process defined therein be                        
          undertaken "at a relatively constant temperature and without                
          serial addition of reagents" ('517 at claim 1).                             
               7.   Davey claims 2 to 10 depend, either directly or                   

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