Interference No. 105,094 Paper42
Couto v. Cohen Page 2
1. Findings of fact
1. This interference is between (a) U.S. Patents 6,200,560 and 6,221,349 to Couto
et al., which are assigned to AVIGEN, INC. and (b) Application 09/084,423 of
Cohen et al., which is assigned to CELL GENESYS, INC. (Paper 1).
2. A settlement agreement between the parties was submitted on October 28, 2003
(Paper 36).
3. Party Cohen submitted a copy of the Assignment of its entire right, title and
interest in and to its involved application to the assignee of the involved Couto
patent, AVIGEN, INC. According to party Cohen, the original Assignment was
being simultaneously submitted to the US PTO Assignment Branch, for
recordation. [Paper 39.]
4. "Pursuant to 37 C.F.R. § 1.662(a), Senior Party Cohen hereby requests adverse
judgment in this interference. Attached to this paper as Tab A is an amendment
deleting the claims in interference in favor of new claims 41-52, which do not
interfere with the claims of the Couto patents in interference." [Paper 41.]
5. According to the records of the US PTO, its Assignment Branch has not yet
recorded the assignment of the Cohen application to AVIGEN, INC,
11. Discussion
Based upon the copy of the submitted Assignment, we enter adverse judgment
against senior party Cohen as to the subject matter of Count 1, the sole count of the
interference. Party Cohen has not submitted any motion to amend the claims of its
involved application. We do NOT enter the amendment attached as Tab A in Paper 41
and take NO position on whether the recited new claims 41-52 interfere with the
involved Couto patent claims. Party Cohen should resubmit the proposed amendment
to the Examiner once its application is returned to the examiners jurisdiction. We leave
entry of the proposed amendment to the discretion of the Examiner.
111. Order
Therefore, it is
ORDERED that judgment on priority as to Count 1, the sole count in the
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