BoxInterferences@uspto.gov Paper 25
Telephone: 571-272-4683 ENTERED: 20 June 2006
UNITED STATES PATENT AND TRADEMARK OFFICE
BOARD OF PATENT APPEALS AND INTERFERENCES
Patent Interference No. 105,371 (RT)
RUEY J. YU
and EUGENE VAN SCOTT1
(6,159,485),
Junior Party,
v.
NEOSE TECHNOLOGIES, INC.
and E-L MANAGEMENT
(09/123,251),
Senior Party.
JUDGMENT - Bd. R. 127(b) - REQUESTED
Before TORCZON, DELMENDO, and LANE, Administrative Patent Judges.
TORCZON, Administrative Patent Judge.
1 Contingent on the granting of its motion 1, Yu requests adverse judgment under Bd.R.
2 127(b). The contingency having been met in Paper 23, the request is GRANTED.
3 A clarification is in order regarding estoppel. Yu notes that it is not estopped from
4 amending its involved claims to exclude the subject matter of the lost count. See, e.g., In re
5 Johnson, 558 F.2d 1008, 1018, 194 USPQ 187, 196 (CCPA 1977). On the present record, Yu is
6 correct, but in a subsequent proceeding the examiner may produce evidence to show that the
7 amended claims are nevertheless unpatentable over the lost count. We do not, and indeed
8 cannot, prejudge the merits of such a hypothetical rejection.
1Tristrata Incorporated of Princeton, New Jersey, also has an interest in the patent.
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