Interference No. 103,036
Opinion re: Issue (2)
Preliminarily, we agree with the party Burroughs et al.
that the party Tucholski's opening brief improperly raises the
matters of lack of written description with respect to the
category B and E to G claims. These matters are not raised in
the party Tucholski's underlying preliminary motion (Paper No.
82) 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
as to why the matter was not properly raised by a timely filed
preliminary motion. Bayles v. Elbe, 16 USPQ at 1391; Payet v.
Swidler, 207 USPQ at 170; and Fredkin v. Irasek, 397 F.2d at 346,
158 USPQ at 284. No such showing was made by the party.
Accordingly, the Tucholski brief is dismissed insofar as it
raises the matters of lack of written description with respect to
the category B and E to G claims.
The Burroughs et al. specification does not describe in
ipsis verbis the presence of thermal insulation as required by
claims 16 to 29, 33, 35 to 37, 39, 40 and 43 to 49. This,
however, is not necessary in order to comply with the description
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