0 Interference No. 104,490 to file preliminary motions. See 37 C.F.R. § 1.633. However, in light of the Court's decision and the cancellation by operation of the statute of all Chen et al.'s claims designated as corresponding to the count in this interference, we have the discretion not to decide those motions in view of this proceeding's current posture. Specifically, in Berman v. House , 291 F.3d 1345, 1351, 1352, 63 USPQ2d 1023, 1027, 1028 (Fed. Cir, 2002), the court held that the Board has the discretionary authority to decide certain issues, "even after the Board determines that one party was not entitled to its claims." Here, all Chen et al.'s claims designated as corresponding to the counts have been canceled by the statute ("A final judgment adverse to a patentee from which no appeal or other review has been or can be taken or had shall constitute cancellation of the claims involved in the patent, and notice of such cancellation shall be endorsed on copies of the patent distributed after such cancellation by the Patent and Trademark Office." See the last sentence of 35 U.S.C. § 135 (a).) Therefore, because Chen et al.'s patent has no claims remaining therein after the issuance of the Court's decision and mandate, we decline to exercise our discretionary authority and, therefore, decline to consider any of Chen et al.'s preliminary motions in this proceeding. Accordingly, all Chen et al.'s preliminary motions are herein DISMISSED. 4Page: Previous 1 2 3 4 5 6 7 8 NextLast modified: November 3, 2007