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Interference No. 104,490
interlocutory duties, issued an order under 37 C.F.R.
1.640(d)(1) against the party Chen et al. to show cause why
judgment should not be entered against them. See Paper Number
133. Chen et al. were involved in another interference,
Interference Number 103,675 and captioned Chen et al. v. Bouchard
et al., based on the same claims of the same patent and involving
the same counts as are involved in this interference. The basis
for the order to show cause was stated as follows:
Chen et al. have not filed any notice in this interference
pursuant to 37 C.F.R. § 1.660(d) indicating that they have
appealed from or have otherwise sought review of the Board's
decision in Interference Number 103,675 and the time for
taking such action has expired. Therefore, by operation of
the statute, claims 1 through 11 of Chen et al.'s involved
patent in this interference are CANCELED and Chen et al.
have no allowable claims extant in their involved patent.
Accordingly, there is no longer any basis on which Chen et
al. could contest priority of invention in this proceeding
nor is there any reason to permit Chen et al. to pursue any
other issues against Hester et al. using the interference
rules.
In their response to the order to show cause, Chen et al.
established that they had timely filed an appeal of the Board's
decision awarding priority to the senior party Bouchard et al. to
the Court of Appeals for the Federal Circuit. See Paper Number
135, filed on November 1, 2002.
In response to Chen et al.'s response to the order to show
cause, the APJ closed the prosecution of this interference and
suspended the proceedings pending a decision by the Court of
Appeals for the Federal Circuit in Chen et al.'s appeal. Chen et
al. were also ordered to:
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