Interference No. 102,755
repeats the XB-70 unpatentability argument that was initially
raised in DeVlieg's timely § 1.633(a) motion filed on August
31, 1992. 29
Both of Nedelk's belated motions included requests under
§ 1.639(c) to take testimony of persons having knowledge of
the facts and explained why Nedelk believed he had "good
cause" under § 1.645(b) for the belatedness of the motions.
Because Nedelk offers different excuses for the belatedness of
the two motions, we will discuss those excuses separately.
3. The excuses for the belatedness of the XB-70
motion
As noted earlier, the XB-70 patentability issues
raised in Nedelk's belated XB-70 motion, filed July 21, 1994,
was initially raised twenty-two and one-half months earlier in
a timely motion filed by DeVlieg in the '756 interference on
August 31, 1992, based on DeVlieg's affidavit describing a
conversation with Smith (NE 1068). According to DeVlieg,
Mr. Smith said during that
conversation that shutting off half the
brakes for taxiing had been tried in
On the same date Nedelk's belated motions were filed,29
DeVlieg, too, filed a belated § 1.633(a) motion in the '756
interference raising the on-sale issue against Stimson, which
motion the APJ dismissed for the same reasons as the belated
Nedelk motion raising this issue ('756 paper No. 85, at 3). The
dismissal of DeVlieg's belated motion is not before us, as DeVlieg
failed to file a brief for final hearing.
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