Interference No. 105,313
Tomita v. Godil
37 CFR § 41.202(d) to show priority under 35 U.S.C. § 102(g), in order for the interference
proceeding to proceed.
13. The basis of the show cause order was that party Tomita’s Rule 608(b) showing did
not demonstrate, in connection with its proof of actual reduction to practice, that the device
constructed was tested and actually worked for its intended purpose.
14. On May 31, 2005, junior party Tomita filed its response (Paper No. 10) to the show
cause order. Party Tomita does not dispute that its Rule 608(b) showing must demonstrate that
the device relied upon as an actual reduction to practice must have been shown to have worked
for its intended purpose. In that connection, however, party Tomita’s response includes a second
declaration from James Hunter (Exhibit 2002).
B. Discussion
For reasons discussed below, junior party Tomita has not shown good cause why
judgment should not be entered against the junior party.
A junior party applicant who fails to demonstrate a prima facie showing under 37 CFR
§ 41.202(d) may file additional evidence only under very limited circumstances with a showing
of good cause. 37 CFR § 41.202(d)(2). The showing of good cause requirement is the same as
that under 37 CFR § 1.617(b), superceded by 37 CFR § 41.202(d)(2), which applied to
submissions under 37 CFR § 1.608(b), superceded by 37 CFR § 41.202(d). The policy behind
the showing of good cause requirement is articulated in the Notice of Final Rule, Patent
Interference Proceedings, 49 Fed. Reg. 48416, 48423 (Dec. 12, 1984), in the context of 37 CFR
§ 1.617(b), as follows:
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