Interference No. 103,197
with the APJ’s order. The second ground is that "no notice of
intent to rely on [these] document[s] has been filed." We49
assume, as does Morrison, that Buschmann is charging Morrison
with failing to comply with § 1.671(e), which reads as
follows:
(e) A party may not rely on an affidavit (including
any exhibits), patent or printed publication previously
submitted by the party under § 1.639(b) unless a copy of
the affidavit, patent or printed publication has been
served and a written notice is filed prior to the close
of the party's relevant testimony period stating that the
party intends to rely on the affidavit, patent or printed
publication. When proper notice is given under this
paragraph, the affidavit, patent or printed publication
shall be deemed as filed under §§ 1.640(b), 1.640(e)(3),
1.672(b) or 1.682(a), as appropriate.
As Morrison correctly notes, this provision is inapplicable to
the declarations in question because they were not submitted
under § 1.639(c), i.e., in support of a motion, opposition, or
reply. The motion to suppress is therefore denied with50
respect to the alleged lack of notice.
F. Should Count 5 be replaced?
Motion at 7-8.49
As noted earlier, the interference rules as amended50
effective April 21, 1995, apply to the testimony stage of this
interference. Prior to those amendments, § 1.671(e) required
notice of intent to rely on ex parte affidavits and § 1.608(b)
affidavits as well as on § 1.639(b) affidavits.
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