Interference No. 105,136 Paper 62
Wang v. Imler Page 15
correspond to the count. Abandonment of an application, other than an
application for reissue having a claim of the patent sought to be reissued
involved in the interference, will be treated as a request for entry of an
adverse judgment against the applicant as to all claims corresponding to
all counts. Upon the filing by a party of a request for entry of an adverse
judgment, the Board may enter judgment against the party.
37 CFR § 1.662(a) does not appear to address the situation before us, i.e.,
where a party has cancelled only some of its claims that correspond to the count and
where the party was not given an opportunity to present new or amended claims via a
§ 1.633(i) responsive preliminary motion. Thus, under the circumstances before us, we
do not treat Imler's amendment cancelling its corresponding '007 claims as a request
for adverse judgment under 37 CFR § 1.662(a).
Because Imler has cancelled its '007 claims that correspond to the count,
Wang's preliminary motion 1 attacking the patentability of these claims is moot. Wang
preliminary motion 1 is DISMISSED. Imler's miscellaneous motion 1 seeking
immediate judgment against Wang prior to a decision on preliminary motion 1 is also
DISMISSED as moot. Since Wang preliminary motion is dismissed as moot, we do not
reach Wang reply 1. Accordingly, the Imler motion to strike Wang's reply (Paper 56) is
DISMISSED as moot.
Priority
Before Wang's preliminary motion 1 was filed the time came for Wang to file its
case-in-chief on priority. Wang failed to file its priority case-in-chief. (FF 20).
Because Wang did not timely file a priority case-in-chief, it is appropriate to enter
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