(Paper 47). As a consequence of the decision, the interference was redeclared with the following
count (“Count 2") (Paper 48 at 2):
A composition according to claim 70 of Alton 06/483,451 or claim 64 of
Alton 08/462,022
or
A composition according to claim 13 of Gray et al. U.S. 4,855,238.
A conference call was scheduled with the parties for 26 February 2003 so that times
could be set for completing the priority phase of the interference. However, during the call, the
parties1 indicated that they had reached agreement on all issues in the interference except the
issue of conception. The parties asked that they be permitted to present Alton’s testimony and
supporting evidence on the issue of conception for a determination as to whether Alton had
established a prima facie case of conception prior to Gray’s earliest alleged conception date.
Gray agreed that if it was determined that Alton had established a prima facie case of conception
prior to Gray’s alleged conception date, then Gray would request adverse judgment.
Subsequently, the parties filed a paper entitled “JOINT MOTION UNDER 37 C.F.R.
§ 1.635 FOR DETERMINATION ON ALTON PRIORITY PROOFS” (Paper 54). According
to the parties, “[i]f the Board determines that the agreed Alton proofs establish such a prima
facie case of conception, then Gray, as junior party, will submit to adverse judgment, terminating
the interference” (Paper 54 at 2).
The procedure Gray has asked us to undertake is somewhat unusual since we ordinarily
would receive all the evidence and arguments on priority, not just the evidence and arguments
relating to conception, before rendering a final judgment. However, the parties have agreed that
1 Michael Borun represented senior party Alton and R. Danny Huntington
represented junior party Gray.
2
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