Interference No. 102,712
motion (Motion 3) or associated reply (Paper No. 110). To
wit, Suzuki did not single out claims 16, 18/16 and 19 for
separate treatment in the motion or reply. Also, all the
evidentiary material referred to on page 80 of Suzuki’s brief,
which purportedly relates to results of comparative tests, was
not cited or discussed in the subject motion or reply. Such
matters, which were not argued before the APJ during the
preliminary motion period with regard to the particular motion
at issue, are not entitled to consideration at final hearing.
See Heymes v. Takaya, 6 USPQ2d 1448, 1452 (Bd. Pat. App. &
Int. 1988); Bayles v. Elbe, 16 USPQ2d 1389, 1391 (Bd. Pat.
App. & Int. 1990).
The fact that the evidentiary material in question may
have been filed and discussed in connection with another
preliminary motion is of no avail to Suzuki with regard to its
consideration in connection with the instant motion. The APJ
could not be expected to make out a case for separate
patentability on Suzuki’s behalf based on evidence not even
cited or discussed in the relevant motion. That was Suzuki’s
burden. Cf. Jacobs v. Moriarity, 6 USPQ2d 1799, 1802 (Bd.
Pat. App. & Int. 1988). All the supporting facts and reasons
upon which the movant intends to rely must be stated in the
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