Interference No. 103,036
these circumstances, the motion was not seasonably
filed after the party Tucholski became, or should
have become, aware of the alleged ground of
unpatentability.
When the party Tucholski became aware of the
potential 35 U.S.C. § 102(b) bar, it was incumbent
upon the party to seasonably file a belated
preliminary motion for judgment. Since no belated
motion for judgment was filed, the party Tucholski is
not entitled to raise the issue of a possible
35 U.S.C. § 102(b) bar at the first final hearing.
In this regard, see the Commissioner's Notice of
October 6, 1992, 1144 OG 8, November 3, 1992. See
also Glaser v. Strickland, 217 USPQ 351, 354
(Bd.Pat.Int. 1981) where the party Glaser was denied
additional discovery on an issue of inequitable
conduct because the issue was not raised by motion.
For the foregoing reasons, the Tucholski request
for a time for filing motions for additional
discovery is denied and the Tucholski motion for
additional discovery on the matter of an alleged
35 U.S.C. § 102(b) is dismissed as not having been
seasonably filed.
Opinion re: Issue 3(ii)
An APJ's decision on a motion is presumed to have been
correct and the party attacking that decision 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
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