Interference No. 103,357
Neither party took testimony. Both parties filed briefs and appeared for oral
argument at final hearing.
The Issues
The issues to be decided at final hearing are:
1. Whether the APJ’s decision denying the request of Owen for additional
testimony at final hearing was an abuse of discretion. 37 CFR § 1.655(a).
2. Whether the APJ’s decision granting Phillips’ motion for judgment was an
abuse of discretion. 37 CFR § 1.655(a).
Owen’s Position
As to the issue of whether Owen should have been granted a testimony period
within which to take testimony in response to the order to show cause, Owen contends that there
is no requirement that a party seek testimony on every preliminary motion in order to preserve
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the right to take testimony in the event an order to show cause issues. The junior party argues
that the rules provide for a testimony period at final hearing without qualification. It is urged that
neither of the two cases relied on in support of the denial of a testimony period are controlling
because neither involved an order to show cause and the express provisions specified in the
3Although this issue is rendered moot by our decision herein with respect to the issue involving
Owen’s alleged non-compliance with 35 U.S.C. § 112, first paragraph, we have decided the
matter for purposes of completeness.
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