Interference No. 103,036
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 at 1050-51, 29 USPQ at 1617.
The party Tucholski has not met its burden to show an
abuse of discretion. The APJ denied the motion for additional
discovery for two reasons--the motion was not promptly filed
after learning of the two consumer surveys and the party
Tucholski failed to file a belated preliminary motion for
judgment. The party Tucholski has not shown where these reasons
are incorrect.
If a party does not raise an issue via a preliminary
motion, the party is not entitled to be heard at final hearing on
that issue. 37 CFR § 1.655(c); General Instrument Corp. Inc. v.
Scientific-Atlanta Inc., 995 F.2d 209, 212, 27 USPQ2d 1145,
1146-47 (Fed. Cir. 1993). If a party has not filed a preliminary
motion raising an issue, the party is not entitled to additional
discovery on that issue. Glaser v. Strickland, 217 USPQ 351, 354
(Bd. Pat. Int. 1981). The fact that the party Tucholski may not
have had all the facts to support a preliminary motion for
judgment on the alleged issue of prior public use is not a
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