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You Must Aggressively Assert Your Rights Under Koninklijke!1



By Charles L. Gholz2

Introduction

Koninklijke Philips Electronics N.V. v. Cardiac Science Operating Co. . 590 F.3d 1326, 93 USPQ2d (Fed. Cir. 2010)(opinion by Circuit Judge Gajarsa for a panel that also consisted of Chief Circuit Judge Michel and Senior Circuit Judge Friedman), says emphatically that the board must decide every patentability and priority motion that is "fairly raised and fully developed during the interference." 3 That sounds promising, but bitter experience 4 led me to publish in the March 2010 issue of this journal an article entitled The Board Must Decide Every Patentability Motion That is "Fairly Raised and Fully Developed During the Interference"óBut Must It Permit Every Authorized Patentability Motion to be "Fully Developed"?5 There is as yet no definitive answer to that question, but there has recently been a disturbing sign.

Goeddel v. Sugano

Goeddel v. Sugano, 617 F.3d 1350, 96 USPQ2d 1398 (Fed. Cir. 2010)(opinion by Circuit Judge Newman for a panel that also consisted of Circuit Judges Lourie and Bryson), was a consolidated appeal from decisions of the BPAI in two different interferences ("the '334 interference" a...

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