Interference No. 103,987
Natta could have filed a belated motion, we
do not think the failure to do that
justifies refusal to hear the issue at
final hearing where Rule 258 permitted
consideration. We think it not
unreasonable for Natta to elect, when
Manson appeared, to wait for final hearing
and attempt to argue the "good reason"
exception of Rule 258 [Anderson, 480 F.2d
at 1398, 178 USPQ at 462].
Therefore, based on this CCPA opinion, we are of the
view that it is a reasonable argument that a change in the
case law is proper grounds for a belated motion in an
interference. However, we view the over 17 month delay as
unduly long, based on the facts of the instant case. In
arguing that the courts have
recognized that Gentry is a case of major significance, Lim
admits that Judge Walker named the Gentry inquiry the “omitted
element test” and applied Gentry to invalidate a patent in a
decision dated less than six months after the Gentry5
decision. Presumably, Judge Walker and Microsoft’s counsel had
5 Judge Walker presided in Reiffin v. Microsoft Corp.,
48 USPQ2d 1274 (N.D. Ca. 1998). This case was decided July
10, 1998.
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