Interference No. 105,136 Paper 62
Wang v. Imler Page 13
that correspond to the count, i.e., claims 66 and 67, during the '821 interference. (FF6
10). Wang's attack failed. (FF 11). Based on the same reasons that Imler's claims
were not shown to be unpatentable to it in the '821 interference (FF 12), a
determination has been made that Imler's claims have not been shown to be
unpatentable to it in the present interference.
b. The '007 claims
Since Wang was not given an opportunity to attack the patentability of the '007
claims during the '821 interference, Wang was authorized to file a preliminary motion
under 37 CFR § 1.633(a) attacking the patentability of the '007 corresponding claims
during the present interference. (FF 17). Wang filed such a preliminary motion.
(FF 25).
When a party files a preliminary motion under 37 CFR § 1.633(a), it may be
appropriate to authorize the party's opponent to file a preliminary motion under 37 CFR
§ 1.633(i). Imler requested authorization to file a § 1.633(i) preliminary motion after
briefing on Wang preliminary motion 1 was complete. (FF 27).7 Imler's request was
denied. However, the order stated that, should Wang's preliminary motion 1 be
granted, Imler could pursue new or amended claims before the examiner upon the
6 Finding of fact.
7 It is not clear on the record before us whether Imler requested
authorization to file a § 1.633(i) preliminary motion at any earlier time in the
interference.
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