Interference No. 105,058
Schaenzer v. Kmght
16. On August 11, 2003, the parties jointly filed two papers each captioned
"PRELIMINARY MOTION UNDER RULE 633," the first of which sought to designate claims
3-9 of the junior party as not corresponding to the count and to cancel claim 48 of the senior
party, and the second of which sought to have judgment of priority awarded in favor of the senior
party. These papers are not accompanied by any certificate of mailing pursuant to 37 CFR § 1.8.
17. On August 14, 2003, we decided the two joint preliminary motions, denying the
motion seeking to designate junior party's claims 3-9 as not corresponding to the count (referring
to the same as Joint Preliminary Motion 1) and dismissing the motion seeking to have judgment
awarded in favor of the senior party (referring to the same as Joint Preliminary Motion 2).
18. In our decision on Joint Preliminary Motion 1, it is stated (at 3-5):
By Joint Preliminary Motion I the parties seek to redefine the interference
by designating claims 3-9 of junior party Schaenzer's involved patent as not
corresponding to the count. Note 37 CFR § 1.637(c)(4)(ii) which provides that a
preliminary motion seeking to designate an application or patent claim as not
corresponding to a count shall "Show that the claim does not define the same
patentable invention as any other claim whose designation in the notice declaring
the interference as corresponding to the count the party does not dispute." Also,
per 37 CFR § 1.637(a), a party filing the motion has the burden of proof to show
that it is entitled to the relief sought in the motion. The initial designation of
claim correspondence in the Notice Declaring Interference is presumed correct
unless shown otherwise by the moving party.
Here, the motion does not explain in any meaningful manner why each of
the claims now sought to be designated as not corresponding to the count does not
define the same patentable invention as any other claim whose designation in the
notice declaring the interference as corresponding to the count the party does not
dispute. Merely counsel's statement that Schaerizer's patent claims 3-9 do not
define the same patentable invention as any other claim corresponding to Count I
does not show or establish that the statement is true. At most, there is no
disagreement between the parties on this issue, but that is not sufficient to
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