Interference No. 104,172
The record indicates that Party Klein's involved U.S. application 08/070,879, filed
June 3, 1993 - has never been examined. Notwithstanding that the Notice declaring the
interference (Paper No. 1) indicates that claims 25, 28-30, 33-35, 38, 39, 54-56, 64-68,
74, and 75 of Klein's application are designated to correspond to the count, their
patentability has never been determined. The patentability of an application claim is a
condition precedent to declaring an interference between the application and an
unexpired patent. 37 C.F.R. § 1.606. Accordingly, the patentability of Klein's application
claims must be determined before an interference involving Klein's U.S. application
08/070,879 and Burnette's U.S. Patent 5,773,600 can proceed.
The record also indicates that this interference improperly involves a senior party
patent and a junior party patent - Burnette's U.S. Patent 5,773,600 and Klein's U.S.
Patent 5,358,868. See Louis v. Okada, 57 USPQ2d 1430, 1434 (Bd. Pat. App. & Int.
2000).
The parties have been contacted about this matter. The parties have responded
by recommending, in part, that Klein's involved application be returned to the examiner
for prosecution.
Consistent with the recommendation of the parties that Klein's involved
application be returned to the examiner for prosecution, undersigned ORDERS the
return of Klein's involved application 08/070,879 and instructs the examiner to examine
it.
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Last modified: November 3, 2007