Interference No. 103,272
position which is inconsistent with a position previously taken by the party, especially
where the party had obtained a judicial benefit on its previous position. Cf. Bosies v.
Benedict, 27 F.3d 539, 542, 30 USPQ2d 1863, 1866 (Fed. Cir. 1994) and Wang Lab. Inc.
v. Applied Computer Sciences Inc., 958 F.2d 355, 358, 22 USPQ2d 1055, 1058 (Fed. Cir.
1992). The benefit obtained by the party Okamoto, as we noted above, was to obtain the
issuance of its claims designated as corresponding to the count.
For the foregoing reasons, we decline to consider issue (5) insofar as it
raises matter (ii), the failure to disclose the best mode with respect to certain aspects of
the Kasha Index measurement procedure and apparatus, but we will consider issue
(5) insofar as it raises matter (i), the failure to disclose the best mode with respect to the
specific process of pH equilibration used in making the party Heuschen’s para-cumyl
phenol endcapped polycarbonate resin. Since the motion papers show that the facts
underlying matter (i) came to the party Okamoto’s attention after the expiration of the time
for filing preliminary motions, i.e., during the testimony of the party Heuschen’s witnesses,
we agree with the party Okamoto that it could not have filed the motion during the motion
period. Consequently, the party Okamoto has shown good cause within the meaning of 37
CFR § 1.655(b) as to why matter (i) was not properly raised by a timely filed motion.
In view of our disposition with respect to issue (5), we need not consider
issue (4). The question of lack of candor raised here is based upon the change of position
taken by the party Okamoto in this interference with respect to its position taken during ex
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