Interference No. 103,270
be struck, and that Coelho's proof of conception be limited to
his (effective) filing date (KOB-129).5
37 CFR § 1.655(a)(1995) provides that at final
hearing the Board may consider "whether entry of any
interlocutory order was an abuse of discretion. All
interlocutory orders shall be presumed to have been correct,
and the burden of showing an abuse
of discretion shall be on the party attacking the order." The
assertion of Keith et al. that it was "error in law" (KOB-127)
for the APJ to grant Coelho's motion for extension of time is
tantamount to an assertion that the APJ abused his
discretion.6
Keith et al. argue that the provision of 37 CFR
§ 1.621(a) that "[w]ithin the time set for filing preliminary
5Each party has been accorded the benefit of the filing
date of a prior application under 35 U.S.C. § 120, and neither
has sought to deny the benefit accorded the opponent.
6As stated in the Notice of Rulemaking in which §
1.655(a) was amended, "legal error is one of the alternative
bases for finding an abuse of discretion" (60 F.R. 14488,
14514 (Mar. 17, 1995), 1173 O.G. 36, 58 (Apr. 11, 1995)).
4
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