Interference No. 102,668
excuse his failure to comply with this requirement. Third,29
the suggestion that the public interest in preventing the
issuance of invalid patents can only be served by having all
of McMahon's evidence that relates to unpatentability
considered in this interference is incorrect. In the event
Cavanagh is able to obtain judgment on priority in his favor
in an appeal (35 U.S.C. § 145) or a civil action (§ 146),
thereby avoiding judgment against his claims on that ground,
the patentability issue can be addressed by the examiner in ex
parte proceedings following termination of this interference.
Moreover, at that time Cavanagh can comply with his duty of
disclosure by calling the examiner's attention to the
affidavit and deposition testimony filed by McMahon in this
interference.
For all of the foregoing reasons, even if judgment
were not being entered against Cavanagh's involved claims on
the ground of priority, we would not enter judgment against
those claims on the ground of unpatentability over the
disclosures made by Jones at the Miami meeting.
Had Cavanagh known that McMahon intended to rely on the29
new affidavits with respect to the patentability issue, he might
have elected to cross-examine these witnesses.
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