Interference No. 102,668
Ellis, which were submitted during McMahon's testimony-in-
chief period.
Cavanagh filed two motions to suppress all of the
foregoing testimony with the exception of the testimony that
was considered in the June 2, 1994, decision on final hearing,
i.e., the first Jones affidavit and the Jones deposition
testimony. According to Cavanagh, the remaining testimony is
entitled to no consideration because it was not submitted in
compliance with the APJ's order of February 28, 1995, which
specifies that "a party may take or present new direct
testimony with respect to [a denied preliminary motion] by
seeking leave to do in a motion under § 1.635 [footnote
omitted], which must satisfactorily explain why the testimony
was unavailable when the corresponding preliminary motion . .
. was filed." Cavanagh notes that McMahon failed to file23
such a motion or provide a satisfactory explanation of why the
testimony in question was unavailable when the first
§ 1.633(a) motion was filed. McMahon correctly counters that
he is entitled to rely on these affidavits as evidence of
priority, i.e., to support his contention that the disclosures
Paper No. 85, at 9.23
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