Interference No. 103,636
Storm contends that it was incumbent on Hong to provide a
substantive response to Storm's motion for judgment when it
filed its opposition to the motion. In support of its
contention, the junior party draws attention to the fact that
37 CFR § 1.638(a) provides that an opposition shall (1)
identify any material fact set forth in the motion which is in
dispute and (2) include an argument why the relief requested
in the motion should be denied. Storm asserts that Hong's
opposition was silent in both respects and that it is too late
for Hong to now make a showing on the merits of the senior
party's motion.
Opinion
The question before us is whether an opponent can raise a
new matter in a response filed under 37 CFR § 1.640(e)(1)(ii)
to an order to show cause issued against it under 37 CFR §
1.640 (d)(1). In answering that question, we must decide
whether the argument of an opponent provided for under 37 CFR
§ 1.638(a) should include all issues which the party is aware
of at the time, and which it might later wish to argue under
37 CFR
§ 1.640(e)(1)(ii).
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