Interference No. 104,681
Spears v. Holland
language of their counsel, perhaps at least a plausible argument
has been made that junior party Spears has made out a prima facie
case that its claims 8-10 do not define the same patentable
invention as Holland's claims 21 and 22. The idea is that if
nothing teaches or suggests the limitations of claim 8,5 then
nothing in combination with Holland's claim 21 or 22 would arrive
at the subject matter of claim 8, assuming that Holland's claims
21 and 22 also do not contain the limitations of Spears' claim 8.
However, we have reviewed the cited portions of the
declarations of Mr. Steven Spears and Mr. David Walker. They do
not support the above-quoted statement made by counsel.
Specifically, both Mr. Steven Spears and Mr. David Walker merely
state (Exhibit 2011, 1 2 and Exhibit 2012, 1 2):
2. With respect to the invention defined by claims 8
10 of the above-identified patent, I am unaware of any
printed publication, public use, sale or offer for sale
of such invention prior to the filing date of April 7,
1995 for the application which resulted in U.S. Patent
No. 5,666,156.
Even when viewed in a light most favorable to junior party
Spears, the above-quoted statement indicates only that the
inventors are not aware of any prior art which is the same as the
5 It is assumed that this reference to "the limitations of
claim 8" refers to those limitations of claim 8 expressly
discussed by party Spears in the preliminary motion as
constituting the basis of patentably distinquishing claims 8-10
from other claims.
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