Interference No. 103,169
Baars et al. allege that the procedure for filing a motion for judgment under the
present circumstances, where the evidence came to light during the Chenevey et al.
testimony period, is not spelled out in the rules or M.P.E.P. Baars et al. allege that they
contacted an unidentified representative at the Board and that they were informed that the
motion should be filed with their brief. Sometime later, Baars et al. contacted the APJ
handling this interference and learned that the motion should have been filed as soon as
the evidence became available. Baars et al. contend that the motions are not untimely
and not prejudicial to Chenevey et al. because the motions were filed as soon as they
learned the correct procedure. We disagree. 37 C.F.R. § 1.655(b)(3) (1995), precludes a
party from raising a patentability issue at final hearing unless the party shows good cause
why the issue was not timely raised by motion or opposition. A motion pursuant to 37
C.F.R. § 1.633(a) is ?properly filed” if it is filed within the preliminary motion period or after
the expiration of the preliminary motion period, provided it is accompanied by a 37 C.F.R.
§ 1.645(b) showing of good cause for the belatedness. The ?good cause” requirement is
satisfied by showing that the motion was filed as soon as possible after the evidence was
discovered. Maier v. Hanawa, 26 USPQ2d 1606, 1610 (Comm'r Pat. 1992); Magdo v.
Kooi, 699 F.2d 1325, 1329-31, 216 USPQ 1033, 1037-38 (Fed. Cir. 1983). See also the
Chairman’s Notice titled, ?Interference Practice: Matters Relating to Belated Preliminary
Motions,” 1144 O.G. 8 (November 3, 1992).
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