Interference No. 102,755
above, which explains that he believed the XB-70 braking
system may have worked in either of two ways, one of which is
the basis for the unpatentability charge made in the belated
motion: "I formed the opinion that the brake modification
undertaken on the XB-70 aircraft may have dealt with pressure
regulation on the brakes, or may have dealt with selective
inhibiting and enabling of the brakes at lower speeds."
Regarding this testimony, Nedelk contends that
[w]hile the latter possibility noted by Mr.
DeYoung might be relevant to the claimed
subject matter, it is clear that neither
Mr. DeYoung nor any personnel at ABSC were
of the opinion that the evidence submitted
By DeVlieg was sufficient to provide a
basis for filing a belated preliminary
motion under 37 CFR §1.633. [NMB 22.]
This contention is not germane to the issue, which is whether
Nedelk had a duty to promptly investigate DeVlieg's
allegations about the XB-70 braking system in order to
preserve the right to file a belated § 1.633(a) motion based
on that braking system.
Nedelk further argues that "[t]o require that Junior Party
Nedelk expend further resources to investigate the possibility
that DeVlieg's affidavit might be factually correct is
inherently unfair, especially when the possibility exists that
nothing may have been obtained through the search" (NMB 22).
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