Interference No. 104,522 Paper108
Nichols v. Tabakoff Page 3
We award judgment against Nichols. Nichols' evidence is insufficient to prove
(1) that Nichols actually reduced the invention to practice before Tabakoff's effective
filing date, (2) that Tabakoff derived the invention from Nichols, (3) that Nichols is a joint
inventor of Tabakofrs involved claims, or (4) that Tabakoff acted inequitably before the
PTO. Since priority is not awarded to Nichols, the issue of whether the Nichols patent
violated the best mode requirement of 35 U.S.C. § 112, T 1 is moot.
II. Background
1 . Nichols is involved in this interference on the basis of U.S. Patent 5,783,700
("Nichols '700," Ex 2009), granted July 21, 1998, based on application 08/887,627, filed
July 3, 1997.
2. Nichols' real party-in-interest is the named inventors.
3. Tabakoff is involved in this interference on the basis of application 09/171,697,
filed October 23, 1998 ("Tabakoff '697," Ex 2011). Tabakoff '697 has been accorded
benefit for the purpose of priority of the June 6, 1997 filing date of its U.S. provisional
application 60/048,848 (Ex 1006).
4. Tabakoff's real party-in-interest is LOHOCLA RESEARCH CORPORATION.
5. The subject matter of the interference is defined by one Count, i.e., a compound
according to any of claims 1 or 15 of Nichols or a compound according to claim 12 of
Tabakoff.
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