Interference No. 102,668
affidavits by Jones, Chapman, and Ellis that were submitted
during McMahon's testimony-in-chief period.
McMahon's argument that Cavanagh's claims are
unpatentable over the first Jones affidavit and the Jones
deposition testimony, i.e., the evidence considered in the
June 2, 1994, decision on final hearing, is not entitled to
consideration at this final hearing, because the earlier
decision is the law of the case on that question. See
Interference Practice: Response to Order to Show Cause Under
37 CFR 1.640, 1074 Off. Gaz. Pat. & Trademark Office 4 n.*
(Jan. 6, 1987):
It should be recognized that the decision of the
Board following the final hearing may not terminate
the interference. For example, if the order to show
cause resulted from an Examiner-in-Chief's grant of
a motion for judgment, and the Board after final
hearing reversed the Examiner-in-Chief's decision,
the case might then proceed to the taking of
priority testimony. The Board's decision would
however be final with regard to the basis of the
motion for judgment. [Emphasis added.]
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