proceedings compared to those associated with ex parte
proceedings.
As indicated earlier, we decline to announce a rule as to
how discretion might be exercised in all cases. Two situations
in which it might be appropriate to decline consideration of
other patentability or priority issues are where an applicant
presents a claim and it turns out in an interference that the
applicant does not comply with (1) 35 U.S.C. § 135(b) or (2) the
written description requirement of the first paragraph of
35 U.S.C. § 112. We can decide how discretion should be
exercised when, and if, we have before us an appropriate case.
C. Order
Upon consideration of the record, and for the reasons given,
it is
ORDERED that Livak Preliminary Motion 1 and Livak
Miscellaneous Motion 1 are dismissed.
FURTHER ORDERED, in view of the 3-judge motions panel
decision holding that there is no interference-in-fact, 16 that a
final judgment is entered that there is no interference-in-fact
between (1) Han claims 102-108 and (2) Livak claims 1, 3, 14
or 24.
16 This expanded panel has not considered or reconsidered the 3-judge
motions panel's no interference-in-fact determination. The 3-judge motions
panel's no interference-in-fact determination governs proceedings in this
interference.
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