Interference No. 103,036
party Burroughs et al. to remain in this interference and those
raised in motions filed by the senior party Burroughs et al.
attacking the right of the junior parties Tucholski and Cataldi
et al. to remain in this interference.
An APJ's interlocutory order is presumed to have been
correct and the party attacking that order has the burden of
showing an abuse of discretion. 37 CFR § 1.655(a). An abuse of
discretion may be found when (1) the decision is clearly
unreasonable, arbitrary or fanciful, (2) the decision is based on
an erroneous conclusion of law, (3) the findings are clearly
erroneous, or (4) the record contains no evidence upon which the
APJ rationally could have based the decision. Cf. Abrutyn v.
Giovanniello, 15 F.3d, 1048, 1050-51, 29 USPQ2d 1615, 1617 (Fed.
Cir. 1994). Nowhere does the party Tucholski's opening brief
request review of the APJ's Interlocutory Order No. 9 or show
that the APJ's order constitutes an abuse of discretion to the
extent that it limits the issues of unpatentability to be raised
by the party Tucholski at this final hearing.
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