Interference No. 102,755
For the foregoing reasons, the APJ did not abuse his
discretion by refusing the consider the reply evidence and the
arguments based thereon. Because this reply evidence is not
entitled to consideration, Stimson's motion to suppress
DeYoung's deposition testimony, which is part of the reply
evidence, is hereby dismissed as moot with respect to that
testimony.
Of the evidence that was submitted with the motion,
i.e., DeYoung's July 21, 1994, affidavit and XB-70 test data
obtained under the FOIA, Stimson seeks to suppress the XB-7035
test data (NR 679-1067) on the ground that it relates to the
merits of the XB-70 motion rather than to its dismissal,
citing the APJ's statement that
[w]hile the dismissal of a motion is
reviewable at final hearing for abuse of
discretion pursuant to § 1.655(a), the
issues raised in a dismissed motion are not
entitled to review at final hearing.
Bayles v. Elbe, 16 USPQ2d 1389, 1392 n.9
(Bd. Pat. App. & Int. 1990); Land v.
Dreyer, 155 F.2d 383, 69 USPQ 602 (CCPA
1946); Jacobs v. Moriarity, 6 USPQ2d 1799,
1802 (Bd. Pat. App. & Int. 1988). [Paper
No. 62, at 3 n.4.]
Nedelk does not take issue with the foregoing instruction,
arguing instead that he is entitled, as part of our review of
Paper No. 88, at 7-8.35
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