Interference No. 101,981
As to the belated motion, Batlogg has filed an opposition
(paper no. 234) followed by Qadri’s reply (paper no. 244).
Batlogg (BaB 55) argues that Qadri’s preliminary motion only
raised a general best mode argument. The barium oxide/carbonate
issue was not raised and it is now too late to raise it. Qadri
(QRB 46-47) responds by saying that
The Party Qadri could not have known when the preliminary
motions were filed that the Party Batlogg knew, as of their
March 3, 1987, filing date to use barium carbonate. The Party
Qadri could only learned that only by reviewing Dr. Cava’s
notebook (BX1, page 56). Not surprisingly, the Party Batlogg
did not grant the Party Qadri access to that notebook before
the Party Batlogg’s testimony period for their case-in-chief.
We agree with Batlogg.
We have reviewed the record. Dr. Cava’s notebook is
discussed in Cava’s declaration of August 27, 1991 (paragraphs 7-
9). Counsel (McDonnell) for Qadri cross-examined Dr. Cava on
September 24, 1991 on the contents of the notebook (see p. 271,
BaR). The belated motion was filed on July 23, 1992, and after
all the parties’ briefs and reply briefs. “Pursuant to 37 CFR
1.655(b)(3), a party is not entitled to raise for consideration
at final hearing a matter which could have been properly raised
by motion unless the party shows good cause why the issue was not
timely raised by motion,” Grove v. Johnson, 22 USPQ2d 1044, 1046
65
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