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Interference No. 105,058
Schaenzer v. Knight
No. 5,345,353 which discloses "a slider having a step (mesa) with a tapered wall" (Exhibit 2004,
at 3). We have not been informed why the senior party has changed its mind about whether
Schaenzer's claims 3 and 4 should be designated as corresponding to the count. Note ftirther that
the senior party has not specifically recanted its previous representation that U.S. Patent No.
5,345,353 discloses a slider having a mesa with a tapered wall.
In this circutristance, it is incumbent upon the moving parties, at a minimum, to explain
away the pertinence of U.S. Patent No. 5,345,353, as far as the disclosure of a slider having a
mesa with a tapered wall, as is required by Schaenzer's claims 4-9, is concerned. Moreover, it is
our view that since the motion should establish a negative assertion, i.e., that the subject claims
would not have been obvious over any of Knight's claims whose correspondence is not in
dispute, the movant must also represent either that it is not aware of prior art which discloses use
of a slider including a plateau adapted to couple light to the data surface through an evanescent
field, as is required by Schaenzer's claim 3, or that while there is such prior art it would not have
been reasonable to combine it with the subject matter of Knight's claims whose correspondence
to the count is not in dispute. Similarly, the movant should represent either that it is not aware of
prior art which discloses use of a slider having a mesa with a tapered wall, as is required by
Schaenzer's claims 4-9, or that while there is such prior art it would not have been reasonable to
combine it with the subject matter of Knight's claims whose correspondence to the count is not
in dispute.
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