4. Mr. Taylor, Esq., counsel for Fazio.
5. Ms. Shamilov, Esq., counsel for Fazio.
Fazio filed a reissue application of its involved U.S.
patent 5,742,543 on February 21, 2001. Along with the reissue
application, Fazio filed an amendment, amending Fazio’s only
involved claims 17 and 18. During a conference call held on
March 1, 2002, counsel for the respective parties were not in
agreement that the amended claims 17 and 18 of the reissue
application were separately patentable from the count (Paper 15).
During the March 7, 2002 conference call, counsel for Fazio
indicated that he will file an amendment to Fazio’s reissue
application of its involved 5,742,543 patent, amending its claims
17 and 18. A copy of the amendment has been filed in the
interference (Paper 16). Counsel for the respective parties
agree that the Fazio claims 17 and 18 twice amended are
separately patentable from the count. Thus, Fazio no longer has
a claim that corresponds to the count in its reissue application.
As provided in the Rules governing entry of adverse
judgment, if a patentee involved in an interference files an
application for reissue during the interference and the reissue
application does not include a claim that corresponds to a count,
judgment may be entered against the patentee. 37 CFR § 1.662(b).
In light of the above, counsel for the respective parties agree
that adverse judgment against Fazio is appropriate.
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Last modified: November 3, 2007