CAVANAGH V. MCMAHON et al. - Page 38




          Interference No. 102,668                                                    


          motion begins with the filing of the motion, not its denial.                
          See Hanagan v. Kimura, 16 USPQ 1791, 1794 (Comm'r Pats. &                   
          Trademarks 1990) ("It is not appropriate to file a motion, see              
          if the motion will be granted, and then ask for testimony if                
          the motion is denied.").  The duty to promptly obtain and file              
          relevant evidence also exists with respect to belatedly filed               
          motions, I.,e., motions filed after the close of the                        
          preliminary motion period.  See Interference Practice: Matters              
          Relating to Belated Preliminary Motions, 1144 Off. Gaz. Pat.                
          Office 8 (Nov. 3, 1992) (where evidence that provides a basis               
          for a § 1.633(a) motion does not come to light until after the              
          end of the preliminary motion period, the board will not                    
          consider the matter unless the party, promptly after the                    
          evidence becomes available,                                                 
          files a belated § 1.633(a) motion accompanied by a § 1.635                  
          motion showing good or sufficient cause for the belatedness).               
          For the foregoing reasons, the twenty-two month hiatus in                   
          McMahon's efforts to obtain Lindberg's affidavit cannot be                  
          excused on the ground that the initial motion, based only on                
          the first Jones affidavit, was granted by the APJ.  Nor can                 
          this period of inactivity be excused on the ground that                     

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