sufficiently explain how that requirement is met. The district court dispute involved the ‘006
patent alone. It did not involve Baldwin’s application. As such, issues have been raised in this
proceeding that could not have been raised in the district court proceeding. Accordingly, the two
causes of action are not the same. Cf. Anderson v. Dionex Corp., 53 USPQ2d 1041, 1043 (BPAI
1999) (where motion to stay proceeding pending the outcome of litigation was denied, panel
explained that the cause of action in district court and the interference before the Office were
different, since application involved in the interference was not involved in litigation).
Frohlich directs our attention to Arcless Contact Co. v. General Electric Co., 87 F.2d 340,
32 USPQ 167 (2nd Cir. 1937) for the proposition that a dismissal with prejudice in District Court
should prevent relitigating the question of priority of invention before the Patent Office.
Frohlich argues that since it was held in Arcless that a final decision in an interference prevented
relitigating priority of invention in district court, that the reverse would also be true. However,
Frohlich has provided no discussion or rationale as to why the reverse would be true.
Furthermore, decisions of regional courts of appeals are not binding precedent, and Frohlich has
provided no reason why we should follow a non-precedential opinion. See Paper 1, Standing
Order § 14. For these reasons, Frohlich miscellaneous motion 1 is denied.
Frohlich preliminary motion 2
Frohlich filed preliminary motion 2 for judgment against Baldwin on the basis that
Baldwin’s claims 20-40 and 44-49 are unpatentable under 35 U.S.C. § 112. Alternatively,
Frohlich argues that Baldwin claims 20-40 and 44-49 are unpatentable under 35 U.S.C. §§
102/103.
Unpatentability of Baldwin claims under § 112
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