Interference No. 104,699
Spalding v. Hartsell
On December 23, 2002, junior party Spalding filed a paper (Paper No. 150) stating:
In compliance with Judge Lee’s Order dated September 19, 2002, Junior
Party Spalding hereby requests entry of an adverse judgment in the above-
identified interference, without prejudice to filing a complaint challenging the
adverse decisions and judgment pursuant to 35 U.S.C. § 146. (Emphasis
added)
Junior party Spalding’s request for entry of adverse judgment, via the bolded text shown
above, appears to also seek from the board an indication that the junior party, despite all its
actions and inactions, including the request for entry of adverse judgment, may challenge any
and all adverse decisions and the judgment in this case in a civil action before a U.S. District
Court under 35 U.S.C. § 146. The district court’s jurisdiction under 35 U.S.C. § 146 is what it is
and can neither be augmented or diminished by the board. We decline to express any indication
on what the junior party may or may not do under 35 U.S.C. § 146 under these circumstances.
Accordingly, junior party’s request is granted without any regard to the proviso in the
request that the junior party is “without prejudice to filing a complaint challenging the adverse
decisions and judgment pursuant to 35 U.S.C. § 146.” If such treatment of the request is not
acceptable to the junior party, a notice to that effect shall, upon reading of this judgment by
junior party’s counsel, be filed immediately by the junior party by facsimile to the board and also
served by facsimile to senior party’s counsel. Upon filing of that notice, (1) the request for entry
of judgment shall be regarded as automatically withdrawn; (2) this judgment shall be regarded as
automatically vacated; and (3) all time periods outstanding on December 23, 2002, be regarded
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