Interference No. 102,755
(2) a motion under 37 CFR 1.635
showing sufficient cause why the
preliminary motion was not timely filed, as
required by 37 CFR 1.645(b). This motion
must include the certificate required by 37
CFR 1.637(b). [Emphasis added.]
The second authority cited by the APJ is Maier v. Hanawa,40
26 USPQ2d 1606, 1610 (Comm'r Pats. & Trademarks 1992), which
held that a party has a duty to locate, during the preliminary
motion period, any relevant prior art it wishes to rely on in
support of a motion alleging unpatentability:
[I]t is incumbent on a party to make its best
reasonable effort within the time period allotted by
the [APJ] to uncover all evidence on which it would
rely in making a preliminary motion. If information
. . . could have been discovered with reasonable
effort within the period set by the [APJ], its later
discovery after expiration of the period would not
be sufficient cause for delay in the late filing of
any preliminary motion relying on that information.
[Footnote omitted.]
Nedelk argues that the APJ's reliance on the Notice to show a41
duty to investigate as early as about August 31, 1992, when
DeVlieg's motion was filed and served, is misplaced because
the first paragraph of the Notice makes it clear that the
Notice concerns prior art discovered after the date of the
APJ's decisions on preliminary motions, which in this
Paper No. 68, at 9-10.40
NMB 19.41
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