Interference No. 104,818
Page No. 2
"accedes, on the facts presented, to the entry of judgment on priority only against Sullivan and in
favor of Bingel. (Paper No. 72, emphasis in original).
Under USPTO practice:
A party may, at any time during an interference, request and agree to entry of an
adverse judgment. Thefiling by a party of a written disclaimer of the invention
defined by a count, concession ofpriority or unpatentability of the subject matter
of a count, abandonment of the invention defined by a count, or abandonment of
the contest as to a count will be treated as a requestfor entry of an adverse
judgment against the applicant or patentee as to all claims which correspond to
the count. Abandonment of an application, other than an application for reissue
having a claim of the patent sought to be reissued involved in the interference,
will be treated as a request for entry of an adverse judgment against the applicant
as to all claims corresponding to all counts. Upon the filing by a party of a request
for entry of an adverse judgment, the Board may enter judgment against the party.
37 C.F.R. § 1.662(a), emphasis added. As set forth in the USPTO interference practice rules,
Sullivan's concession on priority is treated as a request for entry of an adverse judgment against
all Sullivan claims that correspond to the count.
Count 2 is the sole count in interference. (Notice Redeclaring Interference, Paper No.
44). Sullivan is involved in the interference based upon two issued U.S. Patents Nos. 6,015,916
and 6,455,719. All the claims of Sullivan's involved patents correspond to Count 2, i.e., claims
1-18 of U.S. Patent No. 6,015,916 and claim I of U.S. Patent No. 6,455,719. As all of Sullivan's
claims correspond to Count 2, judgment is entered against all of Sullivan's claims.
During an interference proceeding, the "Board of Patent Appeals and Interferences shall
determine questions of priority of inventions and may determine questions of patentability." 35
U.S.C. §135(a), emphasis added. Thus, the question of priority of invention lies at the very heart
of an interference. Since Sullivan has conceded priority, there is no longer a question of priority
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