WANG et al vs IMLER et al - Page 3




                Interference No. 105,136                                                                Paper 62                         
                Wang v. Imler                                                                           Page 3                           
                        to correspond to the count.  Paper 14, at 8.  The count was not modified                                         
                        as a result of the addition of these claims from the Imler '007 application.                                     
                        Because it was determined that a preliminary motion period for interference                                      
                105,136 was de facto provided in the '821 interference as to the involved Wang claims                                    
                and Imler's involved 09/218,143 ("'143") claims, the APJ did not authorize Wang to file                                  
                a preliminary motion under 37 CFR § 1.633(a) attacking the patentability of the '143                                     
                claims.  However, Wang was authorized to file a preliminary motion under 37 CFR                                          
                § 1.633(a) attacking the patentability of the corresponding claims of Imler's                                            
                09/739,007("'007") application since these claims were not involved in the '821                                          
                interference.  Imler was not given an opportunity to file a 37 CFR § 1.633(i) motion but                                 
                was authorized to seek patentable claims before the examiner.                                                            
                        While Wang filed Wang preliminary motion 1 attacking Imler's '007 involved                                       
                claims, Wang filed no case-in-chief on priority.  Imler filed its miscellaneous motion 1                                 
                seeking immediate judgment against Wang and termination of the interference without                                      
                a decision on Wang preliminary motion 1.  Subsequently Imler was authorized to file an                                   
                amendment cancelling all of its '007 claims that correspond to the count.  Accordingly,                                  
                Wang preliminary motion 1, and Imler miscellaneous motion 1 with respect to Wang                                         
                preliminary motion 1, are moot.                                                                                          
                        III.    Findings of fact                                                                                         
                        The record supports the following findings of fact and any other findings of fact                                
                set forth in this decision by at least a preponderance of the evidence.                                                  


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