Interference No. 105,174 Paper 86
Henkel v. P&G Page 11
further testifies that the limitation in Henkel’s claims requiring that the solidified solution
or melt (i.e., non-compressed) region comprises no more than 40% of the surface of the
detergent tablet (‘434 application claim 41) or no more than 40% of the volume of the
tablet (‘578 application claim 44) implies that the dissolution rate in those claims is
based “on a percent of the surface” (Ex 1021, ¶ 10) or “on a surface basis” (id., ¶ 11).
Dr. Scheper concludes his testimony by stating that, in his opinion, “the subject matter
claimed in the ‘578 and ‘434 applications fail to teach or subject [sic, suggest] the
claims of the ‘564 [P&G] patent” (id., ¶ 13).
D. Analysis of P&G’s position
Since P&G relies solely on the SOTAX dissolution rate limitation to distinguish its
claims, we confine our comments to the obviousness of this limitation. P&G proffers at
least three interpretations of the meaning of Henkel’s “dissolution rate” limitation. It is
unnecessary for us to decide which, if any, of these interpretations is correct because
P&G has not met its burden of proof to establish facts sufficient for us to hold that one
of ordinary skill in the art would have concluded that the determination of the dissolution
rate “on a weight by weight basis, using a SOTAX dissolution test method” is not
obvious.
The status quo in an interference is presumed to be correct. A party seeking to
change the status quo has the burden of showing that it is entitled to the relief
requested. 37 CFR § 41.121(b). This burden applies whether or not the motion is
opposed. In a motion for no interference-in-fact the moving party bears the burden and
must establish that all of one party’s claims are patentably distinct from all of the other
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