Interference No. 103,636
A party is not entitled to raise for consideration at
final hearing any matter not raised by the party in a timely
filed opposition to a motion under 37 CFR §§ 1.633 or 1.634.
37 CFR
§ 1.655(b). This decision is not a final decision under 37
CFR
§ 1.658. However, as a decision under 37 CFR § 1.640(e)(4),
it involves an alternative procedure available to a party for
review of matters properly raised under 37 CFR §§ 1.633 or
1.634. By analogy to Rule 655(b), Hong is not entitled to
argue the merits of the finding of unpatentability over the
Japanese Kokai at this time because it did not so argue in its
opposition to Storm's motion.
The sole exception to the above provision of Rule 655(b)
is when a party is able to show good cause why the issue was
not properly raise by a timely filed opposition. We think
that such an exception is available to a party in Hong's
position. How-ever, the fact that Hong opposed Storm's motion
for judgment on a procedural ground, its evidentiary
objection, did not somehow excuse Hong from providing a
complete opposition. In no way was Hong precluded from
simultaneously arguing the merits of Storm's motion in its
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