Interference No. 104,007
date and is therefore unpatentable under 35 U.S.C. § 102(b); (2) failing to disclose to
the U.S. Patent and Trademark Office (PTO) the evidence of unpatentability relating
to the pre-critical date public use, which Schmieding had uncovered and presented to
McGuire in September 1999; and/or (3) relying upon declarations in this interference
which McGuire had expressly withdrawn, which are inadmissible under 37 CFR
§ 1.671(e), and which McGuire had stipulated would not be relied upon because
Schmieding was denied an opportunity to cross-examine the declarants?
McGuire’s Statement of the Issues
McGuire provides the following statement of the issues at pages 1 and 2 of its brief:
1. Between the parties to the interference, who has priority to the subject matter of the
count?
2. Has Schmieding shown sufficient cause to raise the issue of patentability regarding
the ‘115 patent after the deadlines set by the Administrative Patent Judge (APJ) and
the rules?
3. Is McGuire entitled to expenses and attorney fees, (i) for Schmieding’s failure to
comply with 37 CFR § 1.636(a) and the Order of the APJ dated October 29, 1997 by
failing to raise the issue of patentability based on the ‘115 patent during the
preliminary motions period, causing McGuire to incur significant attorney fees and to
lose potential additional royalties, (ii) for Schmieding’s insistence on presenting a
case on the issue of priority, while knowing that the subject matter of the count was
not patentable to him, and/or (iii) for other frivolous positions taken by Schmieding?
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