CHIRIKJIAN et al v. HAN et al v. LEE - Page 2




         which presumably would make it harder for Han to obtain a patent.           
         We decline both invitations.                                                

              A.   Findings of fact                                                  
                   1.   There came a time when the Director of the U.S.              
         Patent and Trademark Office ("Director"), through the Board of              
         Patent Appeals and Interferences ("board"), was of "the opinion"            
         that claims 102-108 of Han application 09/069,847 "would                    
         interfere" with claims 1, 3, 14 and 24 of Livak patent                      
         5,538,848.1                                                                 
                   2.   Accordingly, an interference was declared between            
         Han and Livak.2                                                             
                   3.   As declared, the interference involved a single              
         count.                                                                      
                   4.   The Han application contains claims 66-100 and               
         102-108.  Only Han claims 102-108 were designated as                        
         corresponding to the count and therefore were "involved" in                 
         the interference within the meaning of 35 U.S.C. § 135(a).                  
                   5.   The Livak patent contains claims 1-24.  Only Livak           
         claims 1, 3, 14 and 24 were designated as corresponding to the              
         count and therefore were involved in the interference.                      
                   6.   At the time it was initially declared, one                   
         possible outcome of the interference was that Livak claims 1, 3,            

         1   "Whenever an application is made for a patent which, in the opinion of  
         the Director, would interfere *** with any unexpired patent, an interference
         may be declared ***."  35 U.S.C. § 135(a) ( bold added).                    
         2   An interference is declared on behalf of the Director at the board by   
         an administrative patent judge.  37 CFR § 1.610(a).                         
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