Interference No. 102,755
1. Standard of review
Stimson correctly notes and Nedelk does not dispute19
that the standard of review for the APJ's dismissal of
Nedelk's belated § 1.633(a) motions is the abuse of discretion
standard. See Consideration of Interlocutory Rulings at Final
Hearing in Interference Proceedings, 64 Fed. Reg. 12,900,
12,901 (March 16, 1999), which amended § 1.655(a) to make it
clear that a Board panel at final hearing will resolve the
merits of an interference (e.g., patentability or an attempt
to obtain the benefit of an earlier application) without
giving deference to any interlocutory order and will apply20
the abuse of discretion standard to any interlocutory
procedural orders, such as the dismissal of a motion for
failing to comply with the rules. The amended rule further
provides that the party requesting modification of an
interlocutory order has the burden of showing that the order
should be modified. An abuse of discretion occurs if the
decision (1) is clearly unreasonable, arbitrary or fanciful,
SMB 21-22.19
37 CFR § 1.601(q) provides: "A final decision is a20
decision awarding judgment as to all counts. An interlocutory
order is any other action taken by an administrative patent judge
or the Board in an interference, including the notice declaring an
interference."
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