Ex Parte Kuslich

Board of Patent Appeals and Interferences

Apr 12, 2005

10440036 (B.P.A.I. Apr. 12, 2005)

Filed May 16, 2003. Accorded the benefit of Application 09/909,667, filed July 20, 2001, and Application1
60/219,853, filed July 21, 2000. The real party in interest is Spineology, Inc.
Based on Application 09/794,873, filed February 27, 2001. Accorded the benefit of Application 60/239,216, filed2
October 10, 2000, Application 60/239,217, filed October 10, 2000, Application 60/220,303, filed July 24, 2000, and
Application 60/185,323, filed February 28, 2000. The real party in interest is Spine Wave, Inc.
THIS DOCUMENT WAS NOT WRITTEN FOR PUBLICATION
AND IS NOT BINDING PRECEDENT OF THE BOARD
Filed by: Trial Section Merits Panel Paper No. 50
Mail Stop INTERFERENCE
Board of Patent Appeals and Interferences
United States Patent and Trademark Office
P.O. Box 1450
Alexandria, Virginia 22313-1450
Tel: 571-272-4626 Fax: 571-273-0942
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
STEPHEN D. KUSLICH, JAMES W. AHERN,
LEON J. GROBLER and STEVEN J. WOLFE
Junior Party
(Application 10/440,036)1
v.
STEPHEN HOCHSCHULER, WESLEY JOHNSON,
KEVIN L. NICKELS, THOMAS R. HEKTNER
LARRY WALES and TYLER LIPSCHULTZ
Senior Party
(Patent 6,740,093)2
_______________
Patent Interference No. 105,252
_______________
Before LEE, LANE and MEDLEY, Administrative Patent Judges.
JUDGMENT – REQUEST FOR ADVERSE – Bd.R. 127(b)
On April 7, 2005, senior party Hochschuler filed a paper requesting entry of adverse
judgment against the senior party as to all three counts in this interference (Paper No. 49). The
request is granted. It is
Interference No. 105,252
Kuslich v. Hochschuler
2
ORDERED that judgment as to the subject matter of Count 1 is entered against senior
party STEPHEN HOCHSCHULER, WESLEY JOHNSON, KEVIN L. NICKELS, THOMAS R.
HEKTNER, LARRY WALES and TYLER LIPSCHULTZ;
FURTHER ORDERED that senior party STEPHEN HOCHSCHULER, WESLEY
JOHNSON, KEVIN L. NICKELS, THOMAS R. HEKTNER, LARRY WALES and TYLER
LIPSCHULTZ is not entitled to its patent claim 1 which corresponds to Count 1;
FURTHER ORDERED that judgment as to the subject matter of Count 2 is entered
against senior party STEPHEN HOCHSCHULER, WESLEY JOHNSON, KEVIN L. NICKELS,
THOMAS R. HEKTNER, LARRY WALES and TYLER LIPSCHULTZ;
FURTHER ORDERED that senior party STEPHEN HOCHSCHULER, WESLEY
JOHNSON, KEVIN L. NICKELS, THOMAS R. HEKTNER, LARRY WALES and TYLER
LIPSCHULTZ is not entitled to its patent claims 2 and 3 which correspond to Count 2;
FURTHER ORDERED that judgment as to the subject matter of Count 3 is entered
against senior party STEPHEN HOCHSCHULER, WESLEY JOHNSON, KEVIN L. NICKELS,
THOMAS R. HEKTNER, LARRY WALES and TYLER LIPSCHULTZ;
FURTHER ORDERED that senior party STEPHEN HOCHSCHULER, WESLEY
JOHNSON, KEVIN L. NICKELS, THOMAS R. HEKTNER, LARRY WALES and TYLER
LIPSCHULTZ is not entitled to its patent claims 4 and 5 which correspond to Count 3;
FURTHER ORDERED that if there is a settlement agreement, the parties should note
the requirements of 35 U.S.C. § 135(c) and 41 CFR § 1.205; and
FURTHER ORDERED that a copy of this judgment be placed in the respective
involved application or patent of the parties.
April 11, 2005
Interference No. 105,252
Kuslich v. Hochschuler
3
By Facsimile:
Attorney for Kuslich:
612-349-9266 (Fax)
Brad Pedersen, Esq.
PATTERSON, THUENTE, SKAAR & CHRISTENSEN, P.A.
4800 IDS Center
80 South 8th Street
Minneapolis, MN 55402-2100
Attorney for HOCHSCHULER:
617-452-1666 (Fax)
Michael R. McGurk, Esq.
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER
55 Cambridge Parkway
Cambridge, Mass 02142