Interference No. 105,058
Schaerizer v. Knight
34. On September 22, 2003, Paul T. Dietz, Esq., on behalf of Seagate Technology,
LLC, filed a supplement to joint preliminary motion 3. However, rather than representing that
certain particular features specified in claims 3 and 4 are not disclosed in any known prior art, as
was discussed and agreed to in the telephone conference call conducted on September 12, 2003,
Mr. Dietz represented only that Seagate Technology, LLC deems the entire combination
inclusive of the elements of independent claim 1 or other claim 2, whichever the case may be, to
be novel.
Discussion
The joint preliminary motion 3 is a re-incamation of joint preliminary motion I which
was filed without any supporting evidence in the form of affidavits or declarations. The APJ
authorized the re-filing of joint preliminary motion I as preliminary motion 3, subsequent to
expiration of the time period for filing preliminary motions, on the condition that the parties
recognize that the moving party bears a burden of proof as is provided under 37 CFR § 1.637(a),
that mere attorney argument does not constitute evidence, and that the motion has to be based on
evidence, e.g., testimony on the extent to which a feature relied on for patentable distinction was
known or not known in the arL See Fact 122. Also, despite having obtained six extensions of
time, the parties filed preliminary motion I three days late. We overlooked the lateness and
imposed no penalty.
Joint preliminary motion 3 contains two requests, one to designate junior party
Schaenzer's claims 3-9 as not corresponding to the count and one to have senior party Knight's
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