Interference No. 102,755
the dismissal of the XB-70 motion, to consideration of all of
the evidence filed with the motion. Because the motion36
relies on the acquisition of this test data to excuse the
belatedness, we will not suppress the data. Consequently, the
question before us is whether the APJ abused his discretion in
holding that the belated motion and the evidence filed
therewith, i.e., DeYoung's July 21, 1994, affidavit (NE 500-
01) and the FOIA documents, is sufficient to establish good
cause for the belatedness.
The explanation given in the XB-70 motion under the
heading, "V. GOOD CAUSE SHOWING FOR BELATED MOTION UNDER
37 C.F.R. §1.635 PURSUANT TO 37 C.F.R. §1.655(b) [sic,
§1.645(b) ]," reads in its entirety as follows:37
Junior Party Nedelk requests that this
motion under 37 C.F.R. §1.633(a), be
entered inasmuch as good cause can be shown
why this motion was not earlier filed. 37
Paper No. 91, at 8.36
The requirement to file a § 1.635 motion showing good37
cause for the belatedness of a preliminary motion appears in
§ 1.645(b) rather than § 1.655(b). The requirement of § 1.655(b)
to show "good cause why the issue [argued at final hearing] was
not properly raised by a timely motion" refers to issues that were
not raised by a timely motion or a belated motion. See 1995 Final
Rule Notice, 60 Fed. Reg. at 14513; 1173 Off. Gaz. Pat. Office at
58 ("For purposes of sections other than § 1.645, a belatedly
filed paper is considered 'timely filed' if accompanied by a
motion under § 1.635 to excuse the belatedness, which is
granted.").
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