Ex Parte Melvin

Board of Patent Appeals and Interferences

Aug 16, 2006

09598424 (B.P.A.I. Aug. 16, 2006)

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Paper 10
Filed by:
Trial Merits Panel
Administrative Patent Judge
Mail Stop Interference
P.O. Box 1450 Filed August 16, 2006
Alexandria Va 22313-1450
Tel: 571-272-4683
Fax: 571-273-0042
UNITED STATES PATENT AND TRADEMARK OFFICE
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
DAVID B. MELVIN
Junior Party
(Patent Nos. 6,190,408 and 6,409,760),
v.
CYRIL J. SCHWEICH, JR. and TODD J. MORTIER
Senior Party
(Application No 10/073,968).
Patent Interference No. 105,452 (MPT)
(Technology Center 3700)
1 JUDGMENT - REQUEST FOR ADVERSE - Bd. R. 127(b)
2
3 Before: MEDLEY, TIERNEY and NAGUMO, Administrative Patent Judges
4 TIERNEY, Administrative Patent Judge.
5 This interference was declared on July 10, 2006. Per the Standing Order (Paper No. 2),
6 within fourteen days of the declaration of the interference, each party in interference must file
7 certain mandatory notices (notice of real party in interest, related proceedings) as well as a
8 notification of lead and backup counsel. (Paper No. 2, ¶¶ 8 & 108). Junior Party Melvin failed
9 to file the required papers.
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1 The official USPTO address for the involved Melvin ‘408 and ‘760 patents lists Dr.
2 David B. Melvin as the contact person for the patent. Earlier today, a trial division paralegal,
3 Yolunda Townes, contacted David B. Melvin, regarding the filing of the required papers. Dr.
4 Melvin informed Ms. Townes that Junior Party Melvin would not proceed in this interference
5 and was abandoning the contest. A request for abandonment of the contest under
6 Bd.R. 127(b)(4) is construed as a request for adverse judgment. Bd.R. 127(b).
7 It is:
8 ORDERED that judgment on priority as to Count 1, the sole count in interference, is
9 awarded against Junior Party Melvin.
10 FURTHER ORDERED that Junior Party Melvin is not entitled to a patent containing
11 claims 1-39 of U.S. Patent No. 6,190,408, all of which correspond to Count 1.
12 FURTHER ORDERED that Junior Party Melvin is not entitled to a patent containing
13 claims 1-50 of U.S. Patent No. 6,409,760, all of which correspond to Count 1.
14 FURTHER ORDERED that a copy of this paper shall be made of record in the files of
15 application 10/073,968 and U.S. Patent No. 6,409,760 and U.S. Patent No. 6,190,408.
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1 FURTHER ORDERED that should there be a settlement agreement, the parties
2 attention is directed to 35 U.S.C. §135(c) and Bd.R. 205.
3
4 /Sally C. Medley/ )
5 SALLY C. MEDLEY )
6 ADMINISTRATIVE PATENT JUDGE )
7 )
8 )
9 /Michael P. Tierney/ ) BOARD OF PATENT
10 MICHAEL P. TIERNEY ) APPEALS AND
11 ADMINISTRATIVE PATENT JUDGE ) INTERFERENCES
12 )
13 )
14 /Mark Nagumo/ )
15 MARK NAGUMO )
16 ADMINISTRATIVE PATENT JUDGE )
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21 cc (electronic filing):
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23 Counsel for MELVIN:
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25 Dr. David B. Melvin
26 CardioEnergetics, Inc.
27 3130 Highland Avenue, 3 Floorrd
28 Cincinnati, OH 45219-2374
david.melvin@uc.edu29
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31 Counsel for SCHWEICH:
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33 Leslie I. Bookoff, Esq.
34 FINNEGAN, HENDERSON, FARABOW,
35 GARRETT & DUNNER LLP
36 901 New York Avenue, N.W.
37 Washington, D.C. 20001-4413
les.bookoff@finnegan.com38
troy.grabow@finnegan.com39
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