Interference No. 103,036
Burroughs et al. involved reissue application. According to the
motion, the declaration acknowledges that the examiner rejected
claim language on the ground that the disclosure fails to teach
thermal insulative means and that on the basis of this
declaration and related argumentation, the party Burroughs et al.
were deemed to be a proper participant in this interference. The
motion also relies upon the APJ’s Interlocutory Order No. 9 which
authorizes a party to call an opposing party’s declarant, who is
not relied upon by the opposing party, as a hostile witness
pursuant to 37 CFR § 1.671(g) and urges that the party Burroughs
et al.’s failure to produce the declarants is sanctionable.
37 CFR § 1.671(g) requires that a motion "shall
describe the general nature and the relevance of the
testimony. . . . " Since the motion to compel does not describe
the general nature and relevance of the requested testimony, the
motion fails to comply with the rule. Since the APJ’s
interlocutory order cannot waive the requirements of the rule, we
decline to issue any sanction against the party Burroughs et al.
In any event, the party Tucholski was not unduly prejudiced since
it had the opportunity to rely upon its own experts and those of
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