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.
4
Page: Previous 1 2 3 4 5 6 7 8 Next
Last modified: November 3, 2007