UNITED STATES PATENT AND TRADEMARK OFFICE
`
`Trademark Trial and Appeal Board
`P.O. Box 1451
`
`Alexandria, VA 22313-1451
`
`’7(,L{o§a Q6“!
`
`Mailed:
`
`February 19, 2008
`
`Cancellation No. 92048893
`
`Registration No. 2948813
`
`DrugTech Corporation
`900 Market Street,
`Wilmington, DE 19801 UNITED STATES
`
`TherOx,
`
`Inc.
`
`,v.
`
`DrugTech Corporation
`
`Tawnya R. Wojciechowski, Esq.
`TRW Law Group
`19900 Mac Arthur Blvd. Suite 1150,
`Irvine, CA 92612 UNITED STATES
`
`Lalita R. Greer, Paralegal Specialist:
`
`A petition to cancel the above—identified registration has been filed.
`A service copy of the petition for cancellation was forwarded to
`registrant
`(defendant) by the petitioner (plaintiff).
`An electronic
`version of the petition for cancellation is viewable in the electronic
`file for this proceeding via the Board's TTABVUE system:
`httg://ttabvue.uspto.gov/ttabvue/ .
`
`The Board acknowledges that petitioner included proof that it forwarded
`a service copy of its petition to registrant. However,
`the proof of
`service indicates that petitioner sent that service copy to an attorney
`for registrant, rather than to registrant. As provided in amended
`Trademark Rule 2.l11(a), a petitioner must include "proof of service on
`the owner of record for the registration, or the owner's domestic
`representative of record, at the correspondence address of record."
`rule does not direct a petitioner to serve an attorney,
`though an
`attorney should be served if the attorney is the registrant's designated
`domestic representative.
`The reference in the rule to correspondence
`address is a reference to the address for the owner of the registration
`or the domestic representative, if one has been appointed. While
`petitioner's proof of service is a reasonable attempt to effect service,
`petitioner is directed to forward an additional copy of its petition to
`the owner of record for the registration, at its address of record.
`In
`addition, any future filing must be served directly on the owner of the
`registration.
`If an attorney files an answer or other paper for
`registrant,
`thereby entering an appearance, petitioner may thereafter
`forward service copies to that attorney rather than registrant.
`
`The
`
`Illlllllllllllllllllllllllllllllllllllllllllllllll
`
`02-27-2008
`
`U,S, Patent
`
`$ THU‘:/TH Mail Rcpi Bi
`
`¢?E
`
`

`
`p P
`
`roceedings will be conducted in accordance with the Trademark Rules of
`Practice, set forth in Title 37, part 2, of the Code of Federal
`Regulations ("Trademark Rules").
`These rules may be viewed at the
`USPTO's trademarks page:
`http://www.uspto.gov/main/trademarks.htm.
`The Board's
`main webpage (http://www.usQto.gov/web/offices/dcom/ttab[) includes information on
`amendments to the Trademark Rules applicable to Board proceedings, on
`Alternative Dispute Resolution (ADR), Frequently Asked Questions about
`Board proceedings, and a web link to the Board's manual of procedure
`(the TBMP).
`
`Plaintiff must notify the Board when service has been ineffective,
`within 10 days of the date of receipt of a returned service copy or the
`date on which plaintiff learns that service has been ineffective.
`Plaintiff has no subsequent duty to investigate the defendant's
`.whereabouts, but if plaintiff by its own voluntary investigation or
`through any other means discovers a newer correspondence address for the
`defendant,
`then such address must be provided to the Board. Likewise,
`if by voluntary investigation or other means the plaintiff discovers
`information indicating that a different party may have an interest in
`The
`defending the case, such information must be provided to the Board.
`Board will then effect service, by publication in the Official Gazette
`if necessary.
`See Trademark Rule 2.118.
`In circumstances involving
`ineffective service or return of defendant's copy of the Board's
`institution order,
`the Board may issue an order noting the proper
`defendant and address to be used for serving that party.
`
`Defendant's ANSWER IS DUE FORTY DAYS after the mailing date of this
`order.
`(See Patent and Trademark Rule 1.7 for expiration of this or any
`deadline falling on a Saturday, Sunday or federal holiday.) Other
`deadlines the parties must docket or calendar are either set forth below
`(if you are reading a mailed paper copy of this order) or are included
`in the electronic copy of this institution order viewable in the Board's
`TTABVUE system at the following web address:
`http://ttabvue.usQto.gov/ttabvue/.
`
`include
`Defendant's answer and any other filing made by any party must
`the
`proof of service.
`See Trademark Rule 2.119.
`If they agree to,
`parties may utilize electronic means, e.g., e—mail or fax, during the
`proceeding for forwarding of service copies.
`See Trademark Rule
`2.ll9(b)(6).
`
`The parties also are referred in particular to Trademark Rule 2.126,
`which pertains to the form of submissions.
`Paper submissions,
`including
`but not limited to exhibits and transcripts of depositions, not filed in
`accordance with Trademark Rule 2.126 may not be given consideration or
`entered into the case file.
`
`

`
`Time to Answer
`
`Deadline for Discovery Conference
`
`Discovery Opens
`Initial Disclosures Due
`
`Expert Disclosures Due
`
`Discovery Closes
`Plaintiff's Pretrial Disclosures
`
`Plaintiff's 30-day Trial Period Ends
`Defendant's Pretrial Disclosures
`
`Defendant's 30-day Trial Period Ends
`Plaintiff's Rebuttal Disclosures
`
`Plaintiff's 15-day Rebuttal Period Ends
`
`3/30/2008
`
`4/29/2008
`
`4/29/2008
`5/29/2008
`
`9/26/2008
`
`10/26/2008
`12/10/2008
`
`1/24/2009
`2/8/2009
`
`3/25/2009
`4/9/2009
`
`5/9/2009
`
`the parties are
`As noted in the schedule of dates for this case,
`required to have a conference to discuss:
`(1)
`the nature of and basis
`for their respective claims and defenses,
`(2)
`the possibility of
`settling the case or at least narrowing the scope of claims or defenses,
`and (3) arrangements relating to disclosures, discovery and introduction
`of evidence at trial, should the parties not agree to settle the case.
`See Trademark Rule 2.120(a)(2). Discussion of the first two of these
`three subjects should include a discussion of whether the parties wish
`to seek mediation, arbitration or some other means for resolving their
`dispute. Discussion of the third subject should include a discussion of
`whether the Board's Accelerated Case Resolution (ACR) process may be a
`more efficient and economical means of trying the involved claims and
`defenses.
`Information on the ACR process is available at the Board's
`main webpage. Finally, if the parties choose to proceed with the
`disclosure, discovery and trial procedures that govern this case and
`which are set out
`in the Trademark Rules and Federal Rules of Civil
`Procedure,
`then they must discuss whether to alter or amend any such
`procedures, and whether to alter or amend the Standard Protective Order
`(further discussed below). Discussion of alterations or amendments of
`otherwise prescribed procedures can include discussion of limitations on
`disclosures or discovery, willingness to enter into stipulations of
`fact, and willingness to enter into stipulations regarding more
`efficient options for introducing at trial information or material
`obtained through disclosures or discovery.
`
`The parties are required to conference in person, by telephone, or by
`any other means on which they may agree.
`A Board interlocutory attorney
`or administrative trademark judge will participate in the conference,
`upon request of any party, provided that such participation is requested
`no later than ten (10) days prior to the deadline for the conference.
`See Trademark Rule 2.120(a)(2).
`The request for Board participation
`must be made through the Electronic System for Trademark Trials and
`Appeals
`(ESTTA) or by telephone call to the interlocutory attorney
`assigned to the case, whose name can be found by referencing the TTABVUE
`record for this case at httg://ttabvue.uspto.g0v/ttabvue/.
`The parties should
`contact the assigned interlocutory attorney or file a request for Board
`participation through ESTTA only after the parties have agreed on
`possible dates and times for their conference.
`Subsequent participation
`of a Board attorney or judge in the conference will be by telephone and
`the parties shall place the call at the agreed date and time,
`in the
`absence of other arrangements made with the assigned interlocutory
`attorney.
`
`

`
`The Board's Standard Protective Order is applicable to this case, but
`the parties may agree to supplement that standard order or substitute a
`protective agreement of their choosing, subject to approval by the
`Board.
`The standard order is available for viewing at:
`
`httg://www.uspto.gov/web/offices/dcom/ttab/tbmp/stndagmnt.htm. Any party without
`access to the web may request a hard copy of the standard order from the
`Board.
`The standard order does not automatically protect a party's
`confidential information and its provisions must be utilized as needed
`by the parties.
`See Trademark Rule 2.ll6(g).
`
`Information about the discovery phase of the Board proceeding is
`available in chapter 400 of the TBMP.
`By virtue of amendments to the
`Trademark Rules effective November 1, 2007,
`the initial disclosures and
`expert disclosures scheduled during the discovery phase are required
`only in cases commenced on or after that date.
`The TBMP has not yet
`been amended to include information on these disclosures and the parties
`are referred to the August 1, 2007 Notice of Final Rulemaking (72 Fed.
`Reg. 42242) posted on the Board's webpage.
`The deadlines for pretrial
`disclosures included in the trial phase of the schedule for this case
`also resulted from the referenced amendments to the Trademark Rules, and
`also are discussed in the Notice of Final Rulemaking.
`
`The parties must note that the Board allows them to utilize telephone
`conferences to discuss or resolve a wide range of interlocutory matters
`that may arise during this case.
`In addition,
`the assigned
`interlocutory attorney has discretion to require the parties to
`participate in a telephone conference to resolve matters of concern to
`the Board.
`See TBMP § 502.06(a)
`(2d ed. rev. 2004).
`
`The TBMP includes information on the introduction of evidence during the
`trial phase of the case,
`including by notice of reliance and by taking
`of testimony from witnesses.
`See TBMP §§ 703 and 704. Any notice of
`reliance must be filed during the filing party's assigned testimony
`period, with a copy served on all other parties. Any testimony of a
`witness must be both noticed and taken during the party's testimony
`period.
`A party that has taken testimony must serve on any adverse
`party a copy of the transcript of such testimony,
`together with copies
`of any exhibits introduced during the testimony, within thirty (30) days
`after the completion of the testimony deposition.
`See Trademark Rule
`2.125.
`-
`
`Briefs shall be filed in accordance with Trademark Rules 2.128(a) and
`(b).
`An oral hearing after briefing is not required but will be
`scheduled upon request of any party, as provided by Trademark Rule
`2.129.
`
`If the parties to this proceeding are (or during the pendency of this
`proceeding become) parties in another Board proceeding or a civil action
`involving related marks or other issues of law or fact which overlap
`with this case,
`they shall notify the Board immediately,
`so that the
`Board can consider whether consolidation or suspension of proceedings is
`appropriate.
`
`For faster handling of all papers the parties need to file
`ESTTA NOTE:
`with the Board,
`the Board strongly encourages use of electronic filing
`through the Electronic System for Trademark Trials and Appeals (ESTTA).
`Various electronic filing forms,
`some of which may be used as is, and
`others which may require attachments, are available at hflpflkmflmuugogow
`
`

`
`Trademark Trial and Appeal Board Electronic Filing System. httg:[[estta.usQtg. gov
`ESTTA Tracking number:
`ESTTA193145
`
`Filing date:
`
`02/15/2008
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`Petition for Cancellation
`
`Notice is hereby given that the following party requests to cancel indicated registration.
`
`Petitioner Information
`
`iiieiox.
`
`
`
`ciiizensiiii»
`17500 Carwright Road, Suite 100
`Irvine, CA 92614
`UNITED STATES
`
`
`
`
`
`
`
`
`
`
`Tawnya R. Wojciechowski, Esq.
`TRW Law Group
`
`19900 Mac Arthur Blvd. Suite 1150
`Irvine, CA 92612
`
`UNITED STATES
`
`lindy@tn/v|awgroup.com, tawnya@trwlawgroup.com Phone:949-701-4747
`
`
`
`Attorney
`information
`
`
`
`
`
`Registration Subject to Cancellation
`
`Registration No
`
`2948813
`
`Registration date
`
`05/10/2005
`
`Registrant
`
`
`
`
`DrugTech Corporation
`900 Market Street
`Wilmington, DE 19801
`UNITED STATES
`
`Goods/Services Subject to Cancellation
`
`
`
`
`
`
`
`
`
`
`Class 005. First Use: 2001/12/00 First Use In Commerce: 2002/03/22
`All goods and services in the class are cancelled, namely: nutritional supplements; prenatal
`nutritional supplements, vitamins and pharmaceutical and therapeutic substances, oral
`contraceptives, anti-infective, electrolytes, fertility enhancement preparations and agents, anti-
`inflammatories, nausea treatment preparations and agents, hormones, analgesics, migraine
`
`
`treatment preparations, muscle relaxants, nausea treatment preparations and agents for the
`
`
`treatment of a wide variety of illnesses, diseases and medical conditions, namely, neonatal
`
`
`conditions, osteoporotic conditions, aging, migraines, hypokalemia, menopause, fungal and microbial
`
`
`infections, virological infections, infertility, conception, osteoporosis, muscle pain, hormone
`
`replacement therapy, and morning sickness
`Grounds for Cancellation
`
`
`
`Priority and likelihood of confusion
`Dilution
`
`Trademark Act section 2(d)
`Trademark Act section 43(0)
`
`Related
`Proceedings
`
`Opposition No. 91181702
`
`Marks Cited by Petitioner as Basis for Cancellation
`
`

`
`2285402
`
`10/12/1999
`
`THEROX
`
`'
`
`Application Date
`
`09/21/1998
`
`Foreign Priority
`Date
`
`NONE
`
`
`
`
`
`Class 010. First use: First Use: 1999/04/14 First Use In Commerce: 1999/O4/14
`
`Medical apparatus and instruments, namely, catheters, [guidewires,] pump
`systems, and tubing for the preparation and delivery of physiologic solutions
`used to treat conditions such as tissue ischemia and post-ischemic tissues
`
`
`
`
`
`
`U.S. Registration
`No.
`
`Registration Date
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`
`
`
`
`
`Goods/Services
`
`
`
`
`
`U.S. Registration
`
`2285401
`
`Application Date
`
`09/21/1998
`
`Registration Date
`
`10/12/1999
`
`Word Mark
`
`TH EROX
`
`Design Mark
`
`Description of
`Mark
`
`NONE
`
`- Foreign Priority
`Date
`
`NONE
`
`Goods/Services
`
`Class 010. First use: First Use: 1999/04/14 First Use In Commerce: 1999/04/14
`
`Medical apparatus and instruments, namely, catheters, [guidewires, ] pump
`systems, and tubing for the preparation and delivery of physiologic solutions
`used to treat conditions such as tissue ischemia and post-ischemic tissues
`
`U.S. Registration
`.°
`
`2307292
`
`
`
`Registration Date
`01/11/2000
`
`Word Mark
`
`TH EROX
`
`Application Date
`
`09/21/1998
`
`Foreign Priority Date
`
`
`
`
`Z
`
`Design Mark
`
`Description of
`Mark
`
`
`
`
`
`
`
`
`Goods/Services
`
`Class 010. First use: First Use: 1999/04/14 First Use In Commerce: 1999/04/14
`
`Medical apparatus and instruments, namely, catheters, guidewires, pump
`systems, and tubing for the preparation and delivery of physiologic solutions
`used to treat conditions such as tissue ischemia and post-ischemic tissues
`
`
`
`2235609
`
`Application Date
`
`11/04/1996
`
`03/30/1999
`
`THEROX
`
`Foreign Priority
`Date
`
`NONE
`
`
`
`U.S. Registration
`.0
`
`Registration Date
`
`Z
`
`Word Mark
`
`Design Mark
`
`Description of
`Mark
`
`
`
`
`
`Goods/Services
`
`Class 010. First use: First Use: 1996/10/26 First Use In Commerce: 1996/10/26
`
`medical apparatus and instruments, namely, infusion guidewires for the delivery
`of oxygen-enriched physiologic solutions used to treat ischemia-related
`conditions
`
`
`
`
`
`
`
`

`
`
`
`
`
`
`
`
`
`75556097#TMSN.gif( 1 page )( bytes )
`75556085#TMSN.gif( 1 page )( bytes )
`75556081#TMSN.gif( 1 page )( bytes )
`75192200#TMSN.gif( 1 page )( bytes )
`TTAB Petition to Cancel - TherRx.pdf( 7 pages )(68614 bytes )
`
`
`Attachments
`
`The undersigned hereby certifies that a copy of this paper has been served upon all parties, at their address
`record by First Class Mail on this date.
`
`Certificate of Service
`
`
`
`
`
`
`
`-
`
`
`
`
`
`""‘“’
` Lindy M. Herman
`@ 02/15/2003
`
`
`

`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In the matter of
`
`U.S. Trademark Registration N0. 3231059
`For the Mark: THE THER—RX CONTINUUM
`OF WOMEN'S CARE
`Registered on May 10, 2005
`
`Cancellation N0’
`
`TherOx, Inc.
`a Delaware corporation,
`
`v.
`
`Petitioner,
`
`DrugTech Corporation,
`a Delaware corporation,
`
`
`
`Registrant.
`
`PETITION FOR CANCELLATION OF REGISTRATION
`
`Trademark Trial and Appeal Board
`U.S. Patent and Trademark Office
`
`_
`P.O. Box 1451
`Alexandria, VA 223 13-1451
`
`///
`
`///
`
`

`
`TherOx, Inc., is a Delaware corporation having a principal place of
`
`business at 17500 Cartwright Road, Suite 100, Irvine, California 92614 (“Petitioner”),
`
`believes it is damaged by U.S. Registration. No 2,948,813 for the trademark THE THER-
`
`RX CONTINUUM OF WOMEN’S CARE & Design ( hereinafter “Registrant’s Mark” or
`
`the “THER-RX Mar ”), and hereby petitions to cancel same.
`
`As grounds for cancellation, Petitioner alleges the following:
`
`1.
`
`Petitioner owns the following trademark registrations:
`
`a.
`
`THEROX, U.S. Registration No. 2285402, registered on
`
`October 12, 1999 for “medical apparatus and instruments, namely, catheters,
`
`[guidewires,] pump systems, and tubing for the preparation and delivery of physiologic
`
`solutions used to treat conditions such as tissue ischemia and post-ischemic tissues” in
`
`International Class 10;
`
`b.
`
`THEROX (stylized), U.S. Registration No. 2307292,
`
`registered on October 19, 1999 for “medical apparatus and instruments, namely,
`
`catheters, guidewires, pump systems, and tubing for the preparation and delivery of
`
`physiologic solutions used to treat conditions such as tissue ischemia and post-ischemic
`tissues” in International Class 10;
`I
`
`c.
`
`THEROX & Design, U.S. Registration No. 2235609,
`
`registered on July 20, 1999 for “medical apparatus and instruments, namely, catheters,
`
`[guidewires,] pump systems, and tubing for the preparation and delivery of physiologic
`
`solutions used to treat conditions such as tissue ischemia and post-ischemic tissues” in
`
`International Class 10.
`
`*2‘
`
`PETITION FOR CANCELLATION
`
`

`
`2.
`
`Petitioner is owner of the following trademark application:
`
`a.
`
`THEROX & Design, U.S. Application Ser. No. 77/177,092,
`
`filed May 9, 2007 and published October 30, 2007 for “medical apparatus and
`
`instruments, namely, catheters, pump systems and their disposable parts sold therewith,
`
`and tubing for the preparation and delivery of physiologic solutions used to treat
`
`conditions such as tissue ischemia and post-ischemic tissues” in International Class 10.
`
`3.
`
`Petitioner is the owner of the following International Registration:
`
`a.
`
`THEROX & Design, International Registration No, 944538,
`
`Registered on November 11, 2007 for “Medical apparatus and instruments, namely,
`
`catheters, pump systems and their disposable parts sold therewith, and tubing for the
`
`preparation and delivery of physiologic solutions used to treat conditions such as tissue
`ischemia and post-ischemic tissues” in International Class 10.
`I
`
`4.
`
`Registrant's original application for registration number 2,948,813
`
`was filed on May 6, 2002 for the mark THE THER—RX CONTINUUM OF WOMEN’S
`
`CARE & Design. The Registrant's Mark was registered on the Principal Register on May
`
`10, 2005 in International Class 5 for “nutritional supplements; prenatal nutritional
`
`supplements, vitamins and pharmaceutical and therapeutic substances, oral
`
`contraceptives, anti-infective, electrolytes, fertility enhancement preparations and agents,
`
`anti-inflammatories, nausea treatment preparations and agents, hormones, analgesics,
`
`migraine treatment preparations, muscle relaxants, nausea treatment preparations and
`
`agents for the treatment of a wide variety of illnesses, diseases and medical conditions,
`
`namely, neonatal conditions, osteoporotic conditions, aging, migraines, hypokalemia,
`
`'3 '
`
`PETITION FOR CANCELLATION
`
`

`
`menopause, fungal and microbial infections, virological infections, infertility, conception,
`
`osteoporosis, muscle pain, hormone replacement therapy, and morning sickness,”
`
`claiming a date of first use of March 22, 2002.
`
`5.
`
`Registrant's mark is not incontestable in that it has n_Qt been
`
`registered for more than five years in the US PTO.
`
`6.
`
`Petitioner, together with its predecessors-in—interest, successors-in-
`
`interest, subsidiary entities, affiliated entities and authorized licensees (collectively
`
`“Petitioner”) -has been continuously using the THEROX mark in association with medical
`
`devices, in interstate commerce since at least as early as 1996.
`
`7.
`
`Ever since its adoption and use of the THEROX mark, Petitioner has
`
`extensively sold, advertised and promoted its THEROX products. As a consequence, the
`
`consuming public, especially medical and healthcare community, have come to
`
`recognize, and do recognize, the THEROX mark as being used exclusively by Petitioner,
`
`and to associate and identify such goods offered under the TI-IEROX mark as emanating
`
`from a single source, namely Petitioner.
`
`8.
`
`Petitioner has derived substantial goodwill and value from its
`
`identification with the THEROX mark in its business and within the medical and
`
`healthcare community.
`
`9.
`
`Petitioner’s THEROX mark is famous and distinctive within the
`
`meaning of the Federal Dilution Act. In fact, Petitioner’s medical devices have become
`
`known as cutting—edge products embodying highly advanced technology. Registrant filed
`
`its Application after Petitioner’s THEROX mark became famous.
`
`-4'
`
`PETITION FOR CANCELLATION
`
`

`
`10.
`
`Registrant’s THER—RX Mark is virtually identical to Petitioner’s
`
`THEROX mark, for substantially identical goods, and highly related goods. As such,
`
`Registrant’s mark is confusingly similar in sight, and commercial impression as to the
`
`previously used, well-known, and famous THEROX mark used by Petitioner.
`
`11.
`
`For many years and since long before Registrant’s filing date and/or
`
`first use, actual or constructive, Petitioner has been engaged in the business of producing
`
`medical devices for the healthcare industry under its THEROX mark. Consequently, the
`
`goods set forth in the subject registration and the goods of Petitioner are highly related, if
`
`not virtually identical.
`
`12.
`
`Upon information and belief, Registrant’s adoption and use of, and
`
`the THER—RX Mark was intentionally done with a view and purpose of trading on and
`
`pirating away the substantial reputation and goodwill associated with Petitioner’s ‘
`
`THEROX mark. Upon information and belief, Registrant adopted the confusingly similar
`
`THEROX mark in order to give its customers and clientele appeal and salability that such
`
`mark would not otherwise possess.
`
`13.
`
`Registrant’s THER—RX Mark, when used in connection with
`
`Registrant’s goods as identified in the subject registration, so resembles Petitioner’s
`
`previously used THEROX mark so as to be likely to cause confusion, to cause mistake,
`
`and/or to deceive members of the public concerning an affiliation, connection,
`
`association or sponsorship relationship with the source of the or goods provided under
`
`Petitioner’s THEROX mark and would dilute the distinctive quality of Petitioner’s
`
`'5'
`
`PETITION FOR CANCELLATION
`
`

`
`THER-RX Mark, in violation of in violation of Section 43(a) of the Lanham Act, 15
`
`U.S.C. 1125(a).
`
`14.
`
`In addition, Registrant’s THER-RX Mark dilutes the distinctive
`
`quality of Petitioner’s famous THEROX Mark, in violation of Section 43(c) of the
`
`Lanham Act 15 U.S.C. Section l125(c)
`
`THEREFORE, Petitioner requests that registration of the above-referenced mark
`
`be cancelled and this Petition be granted.
`
`This Petition for Cancellation is being filed electronically, along with the filing fee
`
`required by 37 C.F.R. §2.6(a)(16). Any required fees not submitted with this Notice are
`
`authorized to be deducted from Deposit Account No. 503593.
`
`Dated: January 15, 2008
`
`Respectfully submitted,
`
`By
`
`
`/s/
`Tawnya R. Wojciechowski, Esquire
`‘
`Lindy M. Herman, Esquire
`TRW Law Group
`19900 MacArthur Boulevard, Suite 1150
`
`Irvine, California 92612-8433
`(949) 701-4747 phone
`(949) 701-4712 fax
`Attorneys for Opposer
`TherOx, Inc.
`
`'6'
`
`PETITION FOR CANCELLATION
`
`

`
`PROOF OF SERVICE BY MAIL
`
`I, the undersigned, declare that I am, and was at the time of service of the
`papers herein referred to, over the age of 18 years and not a party to the within action or
`proceeding. My business address is TRW LAW GROUP, 19900 MacArthur Boulevard,
`Suite 1150, Irvine, California 92612, which is located in the county in which the
`within-mentioned mailing occurred.
`I am readily familiar with the practice at my place
`of business for collection and processing of correspondence for mailing with the United
`States Postal Service. Such correspondence will be deposited with the United States
`Postal Service on the same day in the ordinary course of business.
`
`On January 15, 2008,
`
`I served the following document(s):
`
`PETITION FOR CANCELLATION
`
`by placing a true copy in a separate envelope for each addressee named below, with the
`name and address of the persons served shown on the envelope as follows:
`
`Bassam N. Ibrahim, Esquire
`Burns, Doane, Swecker & Mathis, L.L.P.
`Post Office Box 1404
`,
`
`Alexandria, Virginia 22313-1404
`Phone Number: (703) 836-6620
`Fax Number: +1 .703.836.202l
`
`bassam.ibrahim@bipc.com
`
`and by sealing the envelope and placing it in the appropriate location at my place of
`business for collection and mailing with postage fiilly prepaid in accordance with
`ordinary business practices.
`
`Executed on January 15, 2008, at Irvine, California.
`
`(State)
`
`I declare under I penalty of perjury under the laws of the State
`of California that the foregoing is true and correct.
`
`_ X
`
`(Federal)
`
`I declare under penalty of perjury under the laws of the United‘
`States of America that the foregoing is true and correct and
`that I am employed in the office of a member of the bar of this
`
`Court at whose direfition the service was made._T_
`
`Diane Barnes
`
`"7'
`
`PETITION FOR CANCELLATION
`
`

`
`
`
`:£_:_£__£
`
`
`
`88mm:m:<>_EmomE<zw_
`
`
`
`mwmzasm._<_o_...EO
`
`
`
`
`
`w>mQ:m.__.Ec.=.zwIm_nm._0>__mU:D
`
`Cno‘
`anon.mwn?
`
`
`
`41.J...Ju...1.._.MEI....1...1.Q
`
`ecmsoumc.525:O_mm_EEoO
`
`
`
`
`
`mm>o._.=2m>._._z:._.mOn_n_O._<=omz<E1230..<>_m__Ee.a_.<
`
`
`
`
`
`$35mon