other Han or Livak claims were involved in the interference, a
judgment that there is no interference-in-fact became
appropriate.
13. An order (Paper 61) was entered requiring the
parties to show cause why the interference "should not be
terminated with a judgment that there is no interference-in-
fact". The purpose of the order to show cause was to invite the
parties to explain to the board why it should consider any other
motion filed by the parties, including Livak Preliminary Motion 1
and Livak Miscellaneous Motion 1.
14. Livak accepted the invitation by timely filing a
response (Paper 62). As one might expect, Livak was in full
agreement that any final decision should include a judgment
terminating the interference on the basis of a lack of an
interference-in-fact. However, Livak also requested that the
board decide on the merits Livak Preliminary Motion 1 and Livak
Miscellaneous Motion 1. Relying on Federal Circuit 3 and board
precedent,4 Livak maintains that the board has no discretion in
the matter and must decide both of the Livak motions.
15. Han initially did not accept the board's
invitation.
3 Perkins v. Kwon, 886 F.2d 325, 12 USPQ2d 1308 (Fed. Cir. 1989), and
Schulze v. Green, 136 F.3d 786, 45 USPQ2d 1769 (Fed. Cir. 1998).
4 Gustavsson v. Valentini , 25 USPQ2d 1401 (Bd. Pat. App. & Int. 1991),
and Fiddes v. Baird, 30 USPQ2d 1481 (Bd. Pat. App. and Int. 1993).
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