Interference No. 103,208
Hoshino et al. v. Tanaka
Proof of any material fact alleged in a motion,
opposition, or reply must be filed and served with
the motion, oppposition [sic], or reply unless the
proof relied upon is part of the interference file
or the file of any patent or application involved in
the interference or any earlier application filed in
the United States of which a party has been accorded
or seeks to be accorded benefit.
The exceptions clearly have no application here.
According to Hoshino (Br. at 25), the evidence submitted
with the reply and the arguments in the reply are properly
directed toward Tanaka’s opposition to Hoshino’s Motion H2 and
only "coincidentally" bolster Hoshino’s original showings for
establishing a prima facie case for relief. Also according to
Hoshino (Br. at 25), "coincidental" bolstering is not
improper.
We disagree. The bolstering cannot be proper and merely
"coincidental" where, as here, the original motion with the
first Utagawa declaration does not establish a prima facie
case for relief. Because Hoshino’s motion fails even without
our consideration and reliance on Tanaka’s opposition to the
motion, additional evidence cannot, under the disguise of a
reply, remedy the lack of a prima facie showing in the
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