Interference No. 104,007
Concession of Schmieding at the Oral Hearing under 37 CFR § 1.654
At the oral hearing held on May 16, 2002, and subsequent to the filing of briefs, counsel
for Schmieding admitted that its corresponding claims are unpatentable to it and that the party
McGuire is the prior inventor. Such admissions are binding. IV Rivise and Caesar, Interference
Law and Practice § 715 (Michie Co. 1948). Accordingly, we hold that Schmieding’s
corresponding claims are unpatentable to it, and that the party McGuire is the prior inventor.
Schmieding’s Rule 635 Motion for Consideration of Belated Motion
Under Rule 633(a) (Paper Nos. 44 and 45, respectively, filed July 12, 2000)
In Paper No. 44, the party Schmieding moves for consideration of an accompanying
belated motion under Rule 633(a) for judgment against McGuire as to all of its involved claims
(Paper No. 45) on the grounds that such claims are unpatentable over the ‘115 patent to Kenna.
During ex parte prosecution of its involved application, McGuire filed Rule 131
declarations to overcome a rejection over the ‘115 patent. Schmieding asserts to the effect that it
had every reason to believe that McGuire would introduce the declarations into evidence during
the testimony phase of this interference, such that Schmieding had no reason to file a motion for
judgment under Rule 633(a) on the ground that all of McGuire’s claims are unpatentable to it
over the ‘115 patent during the period for filing preliminary motions.
Schmieding’s motion under Rule 635 is denied to the extent that it fails to show good
cause why the Rule 633(a) motion charging unpatentability of McGuire’s involved claims over
the ‘115 patent was not timely filed. 37 CFR § 1.645(b). Absent a motion filed during the
preliminary motions period by Schmieding under Rule 633(a) for judgment on the grounds that
- 6 -
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 Next
Last modified: November 3, 2007