Interference No. 102,668
As for the Lindberg affidavit, McMahon argues that
APJ abused his discretion by denying the belated § 1.633(a)25
motion and refusing to consider the Lindberg affidavit on the
ground that the accompanying affidavit by McMahon's counsel,
Mark Bicks, failed to show good cause for the delay.26
Although McMahon's brief (at 40-41) purports to summarize
Bicks's testimony, his affidavit is not included in McMahon's
(or Cavanagh's) record. As a result, the explanation offered
in the brief for the delay is unsupported by any evidence of
record and thus constitutes mere attorney argument, which is
not entitled to any weight. Meitzner, 549 F.2d at 782, 193
USPQ at 22. Furthermore, even if the Bicks affidavit were of
This is the standard of review for an interlocutory25
decision by an APJ. 37 CFR § 1.655(a). An abuse of discretion
may be found when (1) the decision of an APJ is clearly
unreasonable, arbitrary or fanciful, (2) the decision is based on
an erroneous conclusion of law, (3) the findings of the APJ are
clearly erroneous, or (4) the record contains no evidence upon
which the APJ rationally could have based the decision. 1995
Final Rule Notice, 60 Fed. Reg. at 14514-15, 1173 Off. Gaz. Pat. &
Trademark Office at 58 (citing Heat and Control, Inc. v. Hester
Industries, Inc., 785 F.2d 1017, 1022, 228 USPQ 926, 930 (Fed.
Cir. 1986); Western Electric Co. v. Piezo Technology, Inc. v.
Quigg, 860 F.2d 428, 430-31, 8 USPQ2d 1853, 1855 (Fed. Cir. 1988);
and Abrutyn v. Giovanniello, 15 F.3d 1048, 1050-51, 29 USPQ2d
1615, 1617 (Fed. Cir. 1994)).
Paper No. 80.26
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