Interference No. 104,646 Paper139
SK13 (Johnson) v. Rasmusson, now Rasmusson v. SKB Page 5
of the interference." 37 CFR § 1.655 addresses the matters to be considered in
rendering a final decision, and reads, in relevant part,
(a) [iln rendering a final decision, the Board may consider any
properly raised issue, including priority of invention, derivation by an
opponent who filed a preliminary statement under § 1.625, patentability of
the invention, admissibility of evidence, any interlocutory matter deferred
to final hearing, and any other matter necessary to resolve the
interference. The Board may also consider whether an interlocutory order
should be modified. ... .
a. Rasmusson has chosen not to assert a priority or derivation
challenge
The fundamental purpose of an interference is to determine priority. 35 U.S.C.
§ 102(g). Rasmusson has chosen not to assert a priority or derivation challenge .2
b. interlocutory matters have been heard, decided and the
decision reconsidered for possible modification
Rasmusson and SKB have received a decision on their remaining preliminary
and miscellaneous motions following oral argument by a three judge panel (Paper
122).' No motions have been deferred. Under current practice, three judge panel
decisions bind further action during the interference proceeding .4 Cf. 35 U.S.C.
2 Rasmusson did not serve evidence on the issue of priority or derivation by time period 2,
September 8, 2003 (Paper 132, p. 3). Rasmusson's counsel has confirmed at least twice that
Rasmusson will not be filing such evidence (see telephone conferences of September 30 and October 3,
2003).
3 SKB preliminary motion 1 and miscellaneous motion 1 were denied (Papers 29 and 100,
respectively). Rasmusson miscellaneous motions 2 and 3 were denied (Paper 60),
4 According to the STANDING ORDER governing proceedings before the Trial Section (in
relevant part),
20. Decisions
20.1 Three-judge decisions govern further proceedings
An interlocutory order (37 CFR § 1.601 (q)) entered by a panel consisting of three
or more administrative patent judges generally governs further proceedings in an
interference.
20.2. Request for reconsideration
20.2.1 Reconsideration of interlocutory orders
A party may request reconsideration of any interlocutory order (37 CFR
1.640(c)).
A party may request review at final hearing of any interlocutory order (37 CFR §
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