Because there is no need to continue the interference, there appears to be no need to
decide the motions filed by the parties. Moreover, neither party wishes us to decide the motions.
Accordingly, we dismiss Dietz-Band motions 1 through 8 (Papers 29, 30, and 39-44) and Gray
motions 1 through 3 (Papers 49-51).
Recommendation
A judgment may include a recommendation for further action by the examiner. 37 CFR
§ 41.127(c). (Bd. R. 127(c)). In accordance with Bd. R. 127(c), upon the resumption of ex parte
prosecution of the Gray application, it is recommended that the examiner consider:
(1) Dietz-Band motion 1 for judgment that the involved Gray claims are
unpatentable under 35 USC § 112, ¶ 1, for lack of written description (Paper 29) and Gray's
opposition to the motion (Paper 35), and
(2) Dietz-Band motion 2 for judgment that the involved Gray claims are unpatentable
under 35 USC § 112, ¶ 1, for lack of an enabling disclosure (Paper 30) and Gray's opposition to
the motion (Paper 36).
After reviewing Dietz-Band motions 1 and 2 and Gray's oppositions to the motions, the
examiner may take such action as the examiner deems appropriate.
Order
Upon consideration of the record of the interference and for reasons given, it is
ORDERED that Dietz-Band's request for adverse judgment is GRANTED;
FURTHER ORDERED that JEANNE DIETZ-BAND, WANG-TING HSIEH,
and JOHN F. CONNAUGTON is not entitled to a patent containing claims 1-3, 5-12, and 14-19
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