Patelv.Fuller et al.

Board of Patent Appeals and Interferences

Feb 3, 1999

07723169 (B.P.A.I. Feb. 3, 1999)

THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the
Board.
Paper No.
19
Filed by: Trial Section Merits Panel
Box Interference
Washington, D.C. 20231
Tel: 703-308-9797
Fax: 703-305-0942
UNITED STATES PATENT AND TRADEMARK OFFICE
_______________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_______________
RAJENDRA PATEL,
Junior Party
(Patent No. 5,315,636),
v.
ROBERT M. FULLER, FREDERICK A. EPLER,
and MAXWELL E. MANOWSKI
Senior Party
(application 08/447,751).
_______________
Patent Interference No. 104,166
_______________
Before McKelvey, Senior Administrative Patent Judge, Schafer
and Lee, Administrative Patent Judges.
PER CURIUM.
Final Decision and Judgment
A. Introduction
Interference No. 104,166
Patel v. Fuller
- 2 -
The interference is before a merits panel for entry of a
final decision and judgment.
B. Findings of Fact
1. This interference was declared on May 22, 1998, with
a single count.
2. Senior party Fuller filed preliminary motion 1 to
add proposed count 2, contingent preliminary motion 2 to add
proposed count 3 in case preliminary motion 1 is not granted,
and contingent preliminary motion 3 to add proposed count 4 in
case preliminary motions 1 and 2 are not granted.
3. Junior party Patel filed no preliminary motions.
4. Junior party Patel filed no preliminary statement.
5. Junior party Patel did not oppose any one of senior
party Fuller’s preliminary motions 1, 2, and 3.
6. On September 1, 1998, administrative patent judge
Murriel Crawford issued an order for junior party Patel to
show cause why judgment should not be granted against the
junior party with respect to the subject matter of count 1,
setting a response period of 20 days.
7. Junior party Patel has not responded to the show
cause order.
Interference No. 104,166
Patel v. Fuller
- 3 -
8. Within the 20 day period for the junior party to
respond to the order to show cause, senior party Fuller filed
a miscellaneous motion pointing out that the show cause order
did not address the matter of the senior party’s pending
motions to add a new count, and requesting that the
interference be re-declared with count 2, 3, or 4, as proposed
in the senior party’s preliminary motions.
9. Junior party Patel did not respond to senior party
Fuller’s miscellaneous motion.
10. Senior party Fuller’s preliminary motions 1, 2, and
3, and miscellaneous motion stand unopposed.
11. To this date, junior party Patel has not filed any
paper, with the possible exception of a paper filed by its
counsel to seek withdrawal as attorneys. See Paper No. 5.
12. The request by junior party’s counsel to withdraw
was granted by administrative patent judge Murriel Crawford.
C. Discussion
Party Fuller’s preliminary motion 1 to add proposed count
2 is unopposed. The motion is granted-in-part. No reason has
been shown by party Fuller to have count 2 deviate from the
language of Patel’s claim 1 or Fuller’s claim 80.
Interference No. 104,166
Patel v. Fuller
- 4 -
Accordingly, count 2 will be added, but it will read as
follows:
Party Patel’s claim 1 or party Fuller’s claim 80.
This interference is concurrently re-declared in a separate
paper to include count 2.
Party Fuller’s contingent preliminary motions 2 and 3 are
dismissed, because preliminary motion 1 has been granted.
Party Fuller’s miscellaneous motion to re-declare the
interference is dismissed, because the interference is being
re-declared to include count 2 because of the granting of
preliminary motion 1. Because party Patel did not respond to
the show cause order of September 1, 1998, entry of adverse
judgment against party Patel as to the subject matter of count
1, under 37 CFR § 1.640(e), is appropriate.
As to the subject matter of count 2, entry of adverse
judgment against junior party Patel is also deemed appropriate
at this time, in light of the indication from party Patel’s
counsel, prior to their withdrawal from representation in this
case, that "Mr. Patel advised Philip G. Meyers, an attorney at
Gardere & Wynne, that he did not wish to maintain the patent
or continue this interference," and in light of party Patel’s
Interference No. 104,166
Patel v. Fuller
- 5 -
total failure to prosecute this interference. See Paper No.
5.
Accordingly, it is
ORDERED that judgment as to the subject matter of count 1
is awarded to senior party Fuller and entered against junior
party Patel;
FURTHER ORDERED that judgment as to the subject matter of
count 2 is awarded to senior party Fuller and entered against
junior party Patel;
FURTHER ORDERED that Rajendra Patel is not entitled to
claims 11, 13, 14, 18, 19, and 25 of U.S. Patent No.
5,315,636, which correspond to count 1;
FURTHER ORDERED that Rajendra Patel is not entitled to
claims 1-10, 12, 15, and 20-24 of U.S. Patent No. 5,315,636,
which correspond to count 2;
FURTHER ORDERED that on this record, Robert M. Fuller,
Frederick A. Epler, and Maxwell E. Manowski, are entitled to
claims 90, 92, 93, 95, 96, 102, and 103 of their application
08/447,751, which correspond to count 1;
FURTHER ORDERED that on this record, Robert M. Fuller,
Frederick A. Epler, and Maxwell E. Manowski are entitled to
Interference No. 104,166
Patel v. Fuller
- 6 -
claims 80-89, 91, 94, 97-101 and 104 of their application
08/447,751, which correspond to count 2.

Fred E. McKelvey, Senior )
Administrative Patent Judge)
)
)
) BOARD OF PATENT
) APPEALS
Richard E. Schafer ) AND
Administrative Patent Judge) INTERFERENCES
)
)
)
)
Jameson Lee )
Administrative Patent Judge)
Via Federal Express
Party Patel (pro se)
Rajendra Patel
8817 Belmart Road
Potomac, Maryland 20854-1612
Attorney for party Fuller:
Alan K. Roberts
Ladas & Parry
26 West 61st Street
New York, New York 10023