Interference No. 104,186
Issues
In its brief at page 1, Cleveland presented the following issues:
1. Whether there is an interference-in-fact because count 2 is not supported in the
specification of involved U.S. Patent No. 5,458,028 to Cleveland.
2. Whether there is an interference-in-fact because the invention claimed in
Cleveland's U.S. Patent No. 5,458,028 is not obvious in view of count 2.
3. Whether Cleveland was the first to invent the subject matter of count 2 as a
result of an actual reduction to practice on or about October 1990.
At page 1 of its brief, Juliano presented a statement of the issues consistent with
that presented by Cleveland.
Issues 1 and 2
Rule 1.655(a) has been amended to make it clear that a Board panel at final
hearing will resolve the merits of an interference (e.g., patentability or an attempt to
obtain benefit of an earlier application) without giving deference to any interlocutory
order which is substantive and not procedural. See Consideration of Interlocutory
Rulings at Final Hearing in Interference Proceedings, 64 Fed. Reg. 12,900, 12,901
(March 16, 1999). Accordingly, we consider the substantive issues dealt with by the
Administrative Patent Judge (APJ) in his interlocutory capacity and raised by the
parties in their briefs giving them de novo consideration in this decision.
We consider that Cleveland's position with respect to Issues 1 and 2 is to the
effect that Juliano's motion to add count 2 should not have been granted and that
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