Interference Nos. 103,882, 103,933, and 104,228 Consolidated Judgment
Gregory v. Tsui et al. Page 20
609 application was held to be insufficient to be a constructive reduction to practice such that
Gregory is now senior. Collins has provided no alternative basis for ruling in its favor.
In the 228 interference, the 609 application is sufficient, but Tsui is the senior party20 and
thus must prevail absent a compelling reason to the contrary. Riordan provided no such reason.
E. Other motions
Gregory's motion to suppress the Ray declaration is dismissed as moot since we do not
rely on it to Gregory's detriment.
Gregory's motion to change inventorship (933 Paper No. 37) is dismissed as moot.
Gregory can fix any remaining problem during further ex parte proceedings. There is no pending
motion for invalidity (35 U.S.C. 102(f)) against any of Gregory's claims. Since Tsui has opposed
any change in inventorship, it appears to accede to the adequacy of the status quo. This dismissal
does not change that status quo. Moreover, no testimony has been submitted for consideration on
this disputed matter. Given the great age of these interferences and the prejudice to the public of
any further effective term extension for any resulting patent to resolve the issue would be an
exercise in absurdity. Absent a related actively contested issue (e.g., § 102(f) or availability for
corroboration), a mistake in inventorship is viewed as easily cured. Canon Computer Sys., Inc.
v. Nu-Kote Int'l, Inc., 134 F.3d 1085, 1089, 45 USPQ2d 1355, 1359 (Fed. Cir. 1998).
Collin's motion to change inventorship is also dismissed as moot. All of its claims
corresponded to the 933 count and those claims are canceled by operation of this judgment.
20 It is not clear why Riordan is not the senior party to Tsui. 37 C.F.R. § 1.601(m). Riordan, however, never
raised the issue during the course of the interference. Presumably Riordan had good reason not to raise the issue. We
will not further delay the proceeding by raising it sua sponte now.
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