NEDELK V. STIMSON et al. - Page 39



            Interference No. 102,755                                                                   


            rely to show prima facie entitlement to the relief sought in a                             
            motion must accompany the motion.  See 37 CFR § 1.639(a):                                  
                              (a) Except as provided in paragraphs                                     
                        (c) through (g) of this section, proof of                                      
                        any material fact alleged in a motion,                                         
                        opposition, or reply must be filed and                                         
                        served with the motion, opposition, or                                         
                        reply unless the proof relied upon is part                                     
                        of the interference file or the file of any                                    
                        patent or application involved in the                                          
                        interference or any earlier application                                        
                        filed in the  United States of which a                                         
                        party has been accorded or seeks to be                                         
                        accorded benefit.                                                              
            See also Irikura v. Petersen, 18 USPQ2d 1362, 1368 (Bd. Pat.                               
            App. & Int. 1990) ("A good faith effort must be made to submit                             
            evidence to support a preliminary motion or opposition when                                
            the evidence is available"); Bayles v. Elbe, 16 USPQ2d 1389,                               
            1392 (Bd. Pat. App. & Int. 1990) ("The rules provide that all                              
            evidence in support of a motion must be filed and served with                              
            the motion.  See 37 CFR §1.639"); Orikasa v. Oonishi, 10                                   
            USPQ2d 1996, 2000 n.12 (Comm'r Pats. 1989):                                                
                        [W]here the moving party is in possession                                      
                        of the necessary evidence, there is no                                         
                        legitimate reason why it should not be                                         
                        presented with the motion.  If the motion                                      
                        is not accompanied by then available proof                                     
                        of a material fact, no further evidence                                        
                        should be received in the interference in                                      
                        connection with the issue raised in the                                        
                        motion.  37 CFR §1.639.                                                        



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