Interference No. 103,169
Baars et al. contend that the Board should excuse the tardiness of their motions
because they didn’t know the appropriate procedure to follow in filing a belated motion for
judgment. The motion to excuse is denied. The rule is clear that any motion filed pursuant
to 37 C.F.R. § 1.635 requires the filing of a certificate of conferral. Baars et al. offer no
excuse with respect to the failure of filing such certificate with their first and second
motions. Hence, motions E and F were manifestly insufficient and motions G and H, as
supplements to E and F, are inappropriate. Motions should not be offered in piecemeal
fashion. Bayles v. Elbe, 6 USPQ2d 1389, 1391 (Bd. Pat. App. & Int. 1990). A delay in
filing a motion cannot be excused on the plea that the moving party or attorney was not
sufficiently familiar with interference procedure. Rivise & Caesar, Interference Law and
Practice, Vol. II. § 271, pp. 1095-1097 (Michie Co. 1940). If a late motion is filed, it has
always been clear that the showing of good cause for late filing should be brought with
diligence, i.e., as soon as possible after the discovery of the evidence. Id., § 267, pp.
1080-1085; see also ?Interference Practice: Matters Relating to Belated Preliminary
Motions,” supra. Counsel’s non-awareness of PTO rules does not constitute an
“unavoidable” delay. Kellenberger v. Duenk, 18 USPQ2d 1573, 1575 (Comm’r Pats. &
Trademarks 1991), or “good cause,” Huston v. Ladner, 973 F.2d 1564, 1566, 23 USPQ2d
1910, 1912 (Fed. Cir. 1992), citing Hahn v. Wong, 892 F.2d 1028, 1034, 13 USPQ2d
1313, 1316 (Fed. Cir. 1989).
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