0
Interference No. 104,522 Paper108
Nichols v. Tabakoff Page 70
evidence developed as a result of priority phase testimony (Paper 56, p. 42).
Tabakoff renewed its motion for judgment that Nichols claims 1-15 are
unpatentable for failure to satisfy the best mode requirement of 35 U.S.C. § 112, first
paragraph (TB, Paper 88). Nichols opposes (NO, Paper 96); Tabalkoff replies (TRB,
Paper 97).
As noted at final hearing, "if priority is not awarded to the junior party, then the
best mode issue becomes moot" (Transcript, Paper 107, p. 32,11. 18-19).
In view of our holding that judgment on priority as to Count 1 is awarded against
junior party Nichols (see § 111. above), renewed Tabakoff preliminary motion 1 is
dismissed as moot.
VII. Order
It is
ORDERED that judgment on priority as to Count 1, the only count in this
interference, is awarded against junior party, ALFRED C. NICHOLS and K. LEMONE
YIELDING (NICHOLS);
FURTHER ORDERED that junior party, ALFRED C. NICHOLS and K. LEMONE
YIELDING (NICHOLS), is not entitled to a patent containing claims 1-15 of U.S. Patent
5,783,700 or claims 1-28 of reissue application 09/625,018;
FURTHER ORDERED that, upon consideration of deferred Nichols preliminary
motion 1 (Paper 33) and for the reasons given, Nichols preliminary motion 1 is denied;
FURTHER ORDERED that, upon consideration of deferred Nichols preliminary
motion 2 (Paper 34) and for the reasons given, Nichols preliminary motion 2 is denied;
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