NEDELK V. STIMSON et al. - Page 44


            Interference No. 102,755                                                                   


                              under the FOIA because the controlling                                   
                              agency no longer exists.  The information                                
                              and documentation that was obtained clearly                              
                              demonstrates that during flight tests of                                 
                              the XB-70 only a portion of the brakes were                              
                              used during taxiing (selective inhibiting                                
                              and enabling of the brakes - - not pressure                              
                              regulation on the brakes), while all of the                              
                              brakes were used during normal braking                                   
                              operations.  Accordingly, it appears that                                
                              the broad concept of Count I in this                                     
                              interference was known well prior to                                     
                              August 21, 1987.                                                         
            The APJ considered the motion and DeYoung's affidavit                                      
            insufficient for failing to prove, or even allege, the dates                               
            of the acts alleged therein.   The APJ explained that these38                                                       
            dates are necessary because Nedelk is required to show that he                             
            promptly and diligently investigated the XB-70 braking system                              
            upon being served with DeVlieg's XB-70 motion in order to                                  
            preserve the right to file a belated motion alleging                                       
            unpatentability based on that braking system.  As support for                              
            such a duty, the APJ  cites two authorities, the first being39                                                                 
            Interference Practice: Matters Relating to Belated Preliminary                             
            Motions (hereinafter, Notice), 1144 Off. Gaz. Pat. Office 8                                
            (Nov. 3, 1992), which reads in pertinent part as follows:                                  
                              In some interference proceedings,                                        
                        evidence which would provide a basis for a                                     


              Paper No. 68, at 11-12.38                                                                                   
              Paper No. 62, at 10.39                                                                                   
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