but would not be barred under § 135(b)(1). 37 CFR § 1.633(i)." Thus, all the pending claim in
Strelchenko's involved application are unpatentable under § 135(b)(1). Section 135(b), is "astatute
ofrepose ... to be a statute of limitations, so to speak, on interferences so that the patentee might
be more secure in his property right." Corbett v. Chisholm, 568 F.2d 759, 765, 196 USPQ 337, 342
(CCPA 1977). See also, In re McGrew 120 F.3d 1236,1238, 43 USPQ2d 1632,1635 (Fed. Cir.
1997) (Noting that § 135(b) acts as a statute of repose.). Continuation of this interference under the
circumstances of this case would be contrary to the purpose of § 135(b) to act as a statute of
limitation or repose. We therefore terminate this interference by awardingjudgment to Stice without
considering any of the other outstanding preliminary motions. As noted by the Federal Circuit it is
appropriate to discontinue the interference when all of a party's involved claims are barred by the
opponent's patent under § 135(b)(1). Berman v. Housey, 291 F.3d 1345, 135163 USPQ2d 1023,
1027 (Fed. Cir. 2002).
ORDER
It is
ORDERED thatjudgment on priority as to Counts 1-4, the only counts in this interference,
is awarded against junior party NIKOLAI S. STRELCHENKO, JEFFREY M. BETTHAUSER,
GAIL L. JURGELLA, MARVIN M. PACE and MICHAEL D. BISHOP;
FURTHER ORDERED that junior party NIKOLAI S. STRELCHENKO, JEFFREY M.
BETTHAUSER, GAIL L. JURGELLA, MARVIN M. PACE and MICHAEL D. BISHOP, is not
entitled to a patent containing Claims 57-58, 61-63, 69-88, 106, 112-115 and 118 of Application
09/357,445, filed 20 July 1999;
FURTHER ORDERED that if there is a settlement agreement and it has not already been
filed, attention is directed to 35 U.S.C. § 135(c) and 37 CFR § 1.661; and
14 Strelchenko did file a preliminary motion under 37 CFR § 1.633(i) seeking to add additional claims
to the involved application for the purpose of overcoming grounds of unpatentability raised by Stice's Preliminary
Motions No. 3, 4, and 5. Strelchenko does not assert that these claims would overcome a § 135(b)(1) bar raised in
Stice's Preliminary Motion No. 1.
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