NEDELK V. STIMSON et al. - Page 41



            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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