Van Engelen's preliminary motion is granted. Lee's arguments are based on
technicalities, that are not, based on the facts before us, fatal to van Engelen's preliminary
motion. Lee does not challenge the accuracy of the translation, but rather challenges the
certification of the translation. That the certificate is vague or ambiguous, does not by itself cast
doubt on the veracity of the actual translation. Lee has failed to direct us to evidence that would
demonstrate that the translation is erroneous. Indeed, Lee does not challenge van Engelen's
assertion that the EP '409 claim 10 discloses every element of the count, and thus demonstrates
that the EP '409 application describes an enabling embodiment within the scope of the count.
Even considering the untranslated EP '409, the figures therein appear identical to the figures in
the involved '666 van Engelen patent.
Although Van Engelen fails to attach a claim chart to its preliminary motion, van Engelen
discusses in detail in its motion, per a claim chart, how each element of the count is supported. It
is of no moment that the claim chart is in the body of the preliminary motion versus being
attached to the preliminary motion as an appendix. In any event, van Engelen has submitted into
the record, as part of its reply, an appendix with a claim chart, and a corrected certification.
Ideally, van Engelen should have complied with the procedures when it filed its preliminary
motion. However, Van Engelen's failure to follow the procedures to the 'T' is not fatal to it's
motion, especially where van Engelen satisfies its burden based on the merits in the first place.
For these reasons, van Engelen preliminary motion 6 is g[anted.
Van Engelen preliminga motion 8
Van Engelen has filed a preliminary motion under Rule 633(g), attacking the benefit
is -
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