NEDELK V. STIMSON et al. - Page 36



            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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