LIM et al. V. CAVENEY et al. - Page 9




          Interference No. 103,987                                                    



                    Natta could have filed a belated motion, we                       
                    do not think the failure to do that                               
                    justifies refusal to hear the issue at                            
                    final hearing where Rule 258 permitted                            
                    consideration.  We think it not                                   
                    unreasonable for Natta to elect, when                             
                    Manson appeared, to wait for final hearing                        
                    and attempt to argue the "good reason"                            
                    exception of Rule 258 [Anderson, 480 F.2d                         
                    at 1398,  178 USPQ at 462].                                       
                    Therefore, based on this CCPA opinion, we are of the              
          view that it is a reasonable argument that a change in the                  
          case law is proper grounds for a belated motion in an                       
          interference. However, we view the over 17 month delay as                   
          unduly long, based on the facts of the instant case.  In                    
          arguing that the courts have                                                


          recognized that Gentry is a case of major significance, Lim                 
          admits that Judge Walker named the Gentry inquiry the “omitted              
          element test” and applied Gentry to invalidate a patent in a                
          decision  dated less than six months after the Gentry5                                                                   
          decision. Presumably, Judge Walker and Microsoft’s counsel had              


               5    Judge Walker presided in Reiffin v. Microsoft Corp.,              
          48 USPQ2d 1274 (N.D. Ca. 1998).  This case was decided July                 
          10, 1998.                                                                   
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