Interference No. 104,805
Page No. 4
amendment filed by Day and examine the claims as if the amendment was filed in response to a
non-final office action, i.e., the examiner may reject or allow the claims as he/she sees fit.
Moreover, our determination that Day claims 3, 5-9, 11-13 and 63-70 do not correspond to
Counts I and 2 is based, in part, on Mr. Warneke's declaration that he is unaware of any prior art
that when taken with the '419 or '622 claims, would render these claims obvious. As such,
should the examiner become aware of art that, when taken in combination with the claims of the
'419 or '622 claims, renders Day's claims 3, 5-9, 11-13 and 63-70 obvious, the examiner may
reject Day's claims.
It is:
ORDERED that the interference is terminated.
FURTHER ORDERED that priority of invention as to Counts I and 2 is awarded
against Junior Party Day, U.S. Application No. 08/741,456.
FURTHER ORDERED Junior Party Day, U.S. Application No. 08/741,456 is not
entitled to a patent containing claims 1-2, 4, 10, 14, 25-62 and unamended claims 3, 5-9 and I I
13 (See Paper No. 5), which correspond to Count 1 and Count 2.
FURTHER ORDERED that U.S. Application No. 08/741,456 be returned to the
jurisdiction of the examiner for consideration of the: 1) conversion of the application to a
continuation-in-part; 2) the Amendment under 37 C.F.R. §1. 116; and 3) the Information
Disclosure Statement.
FURTHER ORDERED that U.S. Patent No. 6,042,622 be returned to Group 1700 for
consideration of the change of inventorship from Larsen to Larsen and Day.
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