Interference No. 102,668
USPQ2d 1996, 2000 n.12 (Comm'r Pats. and Trademarks
1989)]. Note the commentary [Patent Interference
Proceedings; Final Rule (1984)] 49 F.R. 48424, at
48442, . . . 1050 O.G. 393 at 411 . . . . indicating
that if affidavits cannot be timely prepared and
filed with a motion, the moving party may wish to
take advantage of Rule 1.639(c) which requires a
party to specify any testimony needed to resolve the
motion. Irikura et al. did not avail themselves of
this rule nor the [extension of time] provisions of
§1.645.
Evidence is considered to have been available if it was on
hand or could have been discovered with reasonable effort.
See Maier v. Hanawa, 26 USPQ2d 1606, 1610 (Comm'r Pats. &
Trademarks 1992):
[I]t is incumbent on a party to make its best
reasonable effort within the time period allotted by
the EIC [APJ ] to uncover all evidence on which it28
would rely in making a preliminary motion. If
information which could have been discovered with
reasonable effort within the period set by the EIC,
its later discovery after expiration of the period
would not be sufficient cause for delay in the late
filing of any preliminary motion relying on that
information [footnote regarding extensions of time
under § 1.645 omitted].
The duty to use reasonable efforts to obtain all relevant
evidence on which the party intends to rely in support of a
Effective October 15, 1993, Examiners-in-Chief (EICs) have28
been authorized to use the title Administrative Patent Judge. See
New Title for Examiners-in-Chief, 1556 Off. Gaz. Pat. & Trademark
Office 32 (Nov. 9, 1993).
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