Interference No. 102,668
and exhibits filed with the motion are sufficient to
establish a prima facie case for unpatentability.
McMahon thereafter ceased its efforts to obtain the
Lindberg testimony until just after the board's June
2, 1994, decision holding Jones'[s] uncorroborated
testimony insufficient to establish a prima facie
case for unpatentability. Specifically, the renewed
effort began on June 20, 1994, when Bicks sent
McGowan a letter renewing the request for testimony
(Ex. D), including the additional information
required by the regulations and accompanied by a
draft affidavit for Lindberg's signature.
McMahon argues that the twenty-two month period of
inactivity is excusable because after the APJ's June 30, 1992,
decision granting the initial § 1.633(a) motion,
the Lindberg testimony was no longer necessary such
that continued efforts to obtain that testimony
could not be justified. Only after the [June 2,
1994] decision on final hearing was rendered and the
need for the Lindberg testimony was re-established,
could McMahon et al. justify further efforts to
obtain the Lindberg testimony. [Br. at 41.]
We do not agree that the APJ's favorable decision on the
initial motion temporarily relieved McMahon of the duty to
promptly obtain and file the affidavit. A party has a duty to
present promptly all of the available evidence on which he
intends to rely in support of a motion. See Irikura v.
Petersen, 18 USPQ2d 1362, 1368 (Bd. Pat. App. & Int. 1990):
A good faith effort must be made to submit evidence
to support a preliminary motion or opposition when
the evidence is available. Orikasa v. Oonishi, [10
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