Interference No. 103,036
Clearly, the Commissioner contemplated that a bifurcated
proceeding, one to decide patentability and the other to decide
priority of invention, might result.
For the foregoing reasons, we hold that the party
Tucholski has not sustained its burden to show an abuse of
discretion.
Issue 3(ii)
With respect to issue 3(ii), the party Tucholski urges
that the APJ abused his discretion by not granting Tucholski's
request for additional discovery. The party Tucholski requested
additional discovery from the party Wang et al. concerning "at
least two consumer surveys" by Duracell Inc.
On pages 7 and 8 of Interlocutory Order No. 9, dated
October 29, 1996 (Paper No. 632), the APJ denied the party
Tucholski's motion stating, in part, as follows:
The matter concerning which the party Tucholski
seeks additional discovery came to the party
Tucholski's attention at least by May 10, 1996 (the
date preliminary statements were opened and the Wang
affidavit showing under 37 CFR 1.608(b) became
available to the party Tucholski). The motion at bar
was not promptly filed after the availability of the
affidavit showing but rather filed on September 11,
1996, approximately four months later. Clearly under
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