Interference No. 103,224
evidence. Having found Hashimoto's original motion to be so
manifestly insufficient as to justify dismissal, its
resuscitation via consideration of later-filed declarations would
be entirely inappropriate. See Arai v. Kojima, 206 USPQ 958, 959
(Comm'r 1978). If anything, the APJ went too far in evaluating
the first Hashimoto Declaration sums n e on the merits as an
alternative basis for denying the subject motion, after having
already found the motion to be deficient and the declaration
belated. We decline to perpetuate this dualistic approach since,
had the declaration actually been earlier presented with the
original motion, it would have more appropriately been subject to
inter partes challenge through opposition and cross-examination
during a testimony period rather than mere sua sponte evaluation
by the APJ.
JUDGMENT
For all of the foregoing reasons, and in view of the uncontested finding
of unpatentability with respect to all claims corresponding to the count,
judgment is hereby entered as follows:
Skutnik et al, the junior party, is not entitled to a patent containing
its claims 39-42 corresponding to the count.
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