What manifests itself through the procedural tool of 37 CFR
§ 1.633(b) is that the Director, through the board, offers a
patentee an opportunity to present (1) evidence, including
affidavit evidence subject to cross-examination by the applicant,
and (2) views on the issue of whether the Director should have
been of the opinion that claims "interfere". In short, 37 CFR
§ 1.633(b) offers a party an opportunity to request
reconsideration of whether claims interfere.
5. Other issues which can be raised in interferences
In addition to authorizing a party to file a preliminary
motion alleging no interference-in-fact, the rules authorize the
parties to file other preliminary motions. One preliminary
motion authorized by the rules is a preliminary motion for
judgment against an opponent based on unpatentability. 37 CFR
§ 1.633(a). The preliminary motion may be based on any ground of
patentability, including unpatentability under 35 U.S.C.
§ 135(b).
In this particular interference, in addition to filing Livak
Preliminary Motion 2 seeking a judgment of no interference-in-
fact, Livak also filed Livak Preliminary Motion 1 seeking
judgment against Han based on an alleged failure to comply with
35 U.S.C. § 135(b). Notwithstanding that there is no
interference-in-fact, Livak wants its preliminary motion for
judgment and its miscellaneous motion decided. Han does not.
Hence, the issue before the board is what to do with the Livak
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Last modified: November 3, 2007