PERSICO et al.v.BAYNE et al.

Board of Patent Appeals and Interferences

Jun 25, 1998

08039297 (B.P.A.I. Jun. 25, 1998)

Application 08/039,297, filed April 19, 1993. Accorded1
the benefit of PCT/IT91/00079, filed September 26, 1991.
Assignors to Consiglio Nazionale delle Ricerche of Rome,
Italy.
Application 08/586,039, filed January 16, 1996. 2
Accorded the benefit of U.S. Application 08/124,259, filed
September 20, 1993; and U.S. Application 07/676,436, filed
March 28, 1991. Assignors to Merck and Co., Inc.
1
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(2) is not binding precedent of the Board.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. 17
UNITED STATES PATENT AND TRADEMARK OFFICE
_____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
_____________
MARIA PERSICO AND DOMENICO MAGLIONE,
Junior Party,1
v.
MARVIN L. BAYNE AND KENNETH A. THOMAS, JR.,

Senior Party.2
______________
Patent Interference No. 104,082
_______________
Before RONALD H. SMITH, SOFOCLEOUS, and CAROFF, Administrative
Interference No. 104,082
2
Patent Judges.
Caroff, Administrative Patent Judge.
JUDGMENT
Persico et al., the junior party, has filed a concession
of priority (Paper No. 13) which, pursuant to 37 CFR §
1.662(a), is treated as a request for entry of an adverse
judgment as to all claims of the junior party corresponding to
the count.
Accordingly, judgment as to the subject matter of the
sole count in issue is hereby awarded to Bayne et al., the
senior party. Persico et al. are not entitled to a patent
containing their claims 1, 3, 12, 20, 32-34, and 37-45
corresponding to the count. On this record, Bayne et al. are
entitled to a patent containing their claims 4, 7, 9, 12, 14,
17, 19, 22, 40, 50, 52, 62, 64, 74 and 75 corresponding to the
count.
We note that the primary examiner has indicated in her
initial memorandum (form PTO-850) that the senior party’s
claims not corresponding to the count are considered
unpatentable. We also note that by judgment in earlier
Interference No. 104,082
3
interference 103,825, Persico et al. was found not to be
entitled to a patent
Interference No. 104,082
4
containing their claim 23 which, in the present interference,
has been designated as not corresponding to the count.
_____________________________ )
Administrative Patent Judge )
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) BOARD OF PATENT
_____________________________ ) APPEALS AND
Administrative Patent Judge ) INTERFERENCES
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Administrative Patent Judge )
Interference No. 104,082
5
Attorneys for Persico et al.:
Robert G. Weilacher
BEVERIDGE, DEGRANDI, WEILACHER & YOUNG
Suite 800
1850 M Street, N.W.
Washington, D.C. 20036
Attorneys for Bayne et al.:
J. Mark Hand
c/o Patent Department
MERCK & CO., INC.
P.O. Box 2000
Rahway, New Jersey 07065-0907