Interference No. 103,208
Hoshino et al. v. Tanaka
to indicate any unexpectedness in the alleged beneficial
results is in its motion, not in a reply to Tanaka’s
opposition. We also cannot state with more emphasis that the
time for Hoshino to submit specific experimental or test data
to provide a factual basis for the mere assertion, in the
motion, of substantial beneficial results is in the motion,
not in a reply to Tanaka’s opposition.
The deficiencies in Hoshino’s prima facie case cannot be
remedied or repaired by way of a reply. The issues are
central to Hoshino’s claim for relief. The assertion of any
unexpected substantial beneficial results and the factual
basis for Mr. Utagawa’s opinions are undeniably a part of
Hoshino’s "case-in-chief" for Motion H2 and thus must be
raised or presented together with Hoshino’s Motion H2, if at
all, not in a reply. Hoshino assumes the risk that without
such crucial evidence and assertion of "unexpectedness," Mr.
Utagawa’s first declaration which was submitted with Motion H2
and the arguments contained in Motion H2 are inadequate to
support the relief requested in Motion H2, as we have
determined here. Note also 37 CFR § 1.639(a) (1993),
which states:
- 39 -
Page: Previous 32 33 34 35 36 37 38 39 40 41 42 43 44 45 46 Next
Last modified: November 3, 2007