Interference No. 103,036
the side of a battery housing or any type of switch attached to
the side of the battery housing.
III
Insofar as the brief raises the matter of whether the
parties' claims are unpatentable over Sterling, U.S. Patent No.16
1,497,388 in view of the prior art BatCheck® tester (the third17
alternative rejection raised in ground E), the brief is not
entitled to consideration. This matter is not raised in the
party Tucholski's underlying preliminary motion (Paper No. 81)
for judgment. As we noted above, pursuant to 37 CFR § 1.655(b),
a party cannot present at final hearing a matter which is not
raised in a motion unless the party shows good cause why the
matter was not properly raised by a timely filed preliminary
motion. Bayles v. Elbe, 16 USPQ at 1391; Payet v. Swidler, 207
The Sterling patent is cited in the Burroughs et al. patent16
specification and in the Wang et al. application disclosure.
This is the device illustrated in Parker, U.S. Patent No.17
4,737,020. See the testimony of Mr. Alan B. Palmer at pages 750 and
751 of the party Wang et al.'s record (WR 750 and 751). Thus, the
assertion that the party Burroughs et al.'s claims are unpatentable
under 35 U.S.C. § 103 over Sterling in view of the BatCheck® device
would be cumulative to the assertion that the claims are unpatentable
over Sterling in view of Parker.
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