Interference No. 102,755
C.F.R. §1.655(b)(3). Specifically, all of
the facts as presented hereinabove were not
known to Junior Party Nedelk until after
the decisions on preliminary motions had
been made. In fact, the test reports
attached hereto as Exhibit B were not
available to Junior Party Nedelk until just
recently when the documents were acquired
under the Freedom of Information Act
(FOIA). As soon as the information was
obtained, it was reviewed and this Motion
was prepared.
Junior Party Nedelk acknowledges that
it knew of Mr. Smith's statements to Ms.
Harasek and Mr. DeVlieg before the time for
making decisions on Preliminary Motions in
this interference had lapsed. However, as
noted in Mr. DeYoung's Declaration, no one
at Aircraft Braking Systems Corporation
believed the statements were factually
correct. From what Aircraft Braking
Systems could ascertain, the operation of
the braking control system on the XB-70
aircraft may have related to differing
pressures on the brakes, not to the use of
only a portion of the brakes at lower
speeds.
It was not until Junior Party Nedelk
received the test reports under the Freedom
of Information Act and had reviewed the
documents that it learned that the XB-70
braking system was indeed relevant to the
invention involved in this interference.
Thus, Junior Party Nedelk now presents this
evidence with this motion.
Support for filing this motion
belatedly can be found in General
Instrument Corp., Inc. v. Scientific-
Atlanta Inc., [995 F.2d 209, 213,] 27
USPQ2d 1145[, 1147-48] (Fed. Cir. 1993),
wherein it is noted that belated motions
for judgment under §1.633(a) can be made
and will likely meet the good cause
requirement where the supporting
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