Interference No. 103,379
Decision on Reconsideration
3). Dance's reliance on the preliminary statement is improper
because it is not evidence. 37 CFR § 1.629(e). Furthermore,
the contention that the evidence establishes an actual
reduction to practice fails because this evidence does not
establish that (1) prior to Seifert's filing date, Dance
constructed an embodiment that met every element of the
interference count and (2) this embodiment operated for its
intended purpose. Eaton v. Evans, 204 F.3d 1094, 1097,
53 USPQ2d 1696, 1698 (Fed. Cir. 2000).
B. The timeliness of Dance's motion to strike the initial
reissue declarations of Seifert, Downey, and Shank
At pages 31-33 of the Decision, we held that Dance
has not shown good cause under § 1.645(b) for waiting five and
one-half months after the oral hearing to file the motion to
strike the initial reissue declarations of Seifert, Downey,
and Shank on the ground that they contain inadmissible hearsay
due to absence of a supporting declaration by Seifert's
counsel, Mr. Bookstein. We treated this motion as a motion to
suppress evidence under § 1.656(h), which specifies that such
a motion is due with the moving party's opening brief.
Dance's argument that the motion should be considered timely
because "it was only from and after that October 14, 1999[,]
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