In Re Donaldson Company, Inc, 981 F.2d 1236 (Fed. Cir. 1992)

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US Court of Appeals for the Federal Circuit - 981 F.2d 1236 (Fed. Cir. 1992) Dec. 3, 1992

Appealed from United States Patent & Trademark Office Board of Patent Appeals & Interferences.

Fred E. McKelvey, Sol., and James T. Carmichael, Asst. Sol., Arlington, Va., were on the motion to recall mandate, vacate order remanding the appeal, and reinstate the appeal on the docket. Of counsel were Richard E. Schafer and Albin F. Drost.

R. Carl Moy, Merchant, Gould, Smith, Edell, Welter & Schmidt, P.A., Minneapolis, Minn., filed a response joining the Commissioner's combined motion.


Pending before the court is a motion filed on May 7, 1992, by the Solicitor of the United States Patent and Trademark Office in the above-identified appeal to recall the mandate, to vacate the order of the court of October 2, 1991, 954 F.2d 732, remanding the appeal, and to reinstate the appeal on the court's docket. The appellant has joined the motion. Appellant had filed its principal brief on August 26, 1991. Other briefs received by the court have not been filed in view of the status of the case.

Upon vote of the active judges of the court in banc, it is ORDERED that:

1. The above motion is granted;

2. The appeal will be heard in banc;

3. Appellee's principal brief received by the court on June 5, 1992, and appellant's reply brief received June 23, 1992, are now accepted and filed; however, the parties are requested to file twenty-five (25) additional copies of all briefs;

4. Each of the parties, at its option, may file a supplemental brief limited to ten (10) pages on or before January 5, 1993, addressing the issue of the interpretation of 35 U.S.C. § 112, sixth paragraph;

5. Briefs of amici curiae, if any, may be filed on or before January 5, 1993, but must otherwise comply with Rule 29;

6. The court requires twenty-five (25) copies of briefs filed under paragraph 4 or 5; and

7. A hearing will be scheduled in due course.