Bouzida argues that we should consider its preliminary
motion 1 during a final hearing to determine if the board legally
erred in denying Bouzida’s preliminary motion 1. Bouzida then
cites to a string of cases for the proposition that the board
should resolve patentability issues when those questions are
fully presented.
A three judge panel has already determined patentability
issues raised in this interference. Specifically, a three judge
panel has already once considered and decided Bouzida preliminary
motion 1. Thus, this is not a situation where a party has raised
a patentability issue and the board has not considered the issue.
Since the inception of the Trial Section1, it has been the
standard practice for a three judge motions panel to decide all
preliminary motions in an interference. The Trial Section is of
the opinion that entry of three judge decisions is more efficient
and establishes the law of the case. In this interference, a
three judge panel decided the preliminary motions filed during
the preliminary motions phase of the interference (Paper 51).
The scope of review at final hearing of a three-judge
interlocutory order is explained in Trial Section precedential
opinion Charlton v. Rosenstein, No. 104,148, 2000 Pat. App. Lexis
1 See Notice of the Chief Administrative Patent Judge of
Nov. 6, 1998, Interference Practice – New Procedures for Handling
Interference Cases at the Board of Patent Appeals and
Interferences, 1217 Off. Gaz. Pat. & T. Office 18 (Dec. 1, 1998).
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