Interference No. 102,755
We do not agree that requiring Nedelk to investigate the two
alternative
interpretations DeYoung gave to Smith's account constituted an
unfair burden on Nedelk. Finally, Nedelk argues that
[t]o require a party to seek further
information on subject matter which is
already the subject of a [DeVlieg's]
pending motion for which further discovery
had already been sought [in the '756
interference], places an unfair and
economic hardship on the party and is
simply unreasonable. Again, why should one
party (Nedelk) be required to spend its
money and other resources to seek further
information, while another party (DeVlieg)
is allowed to await a decision by the
Administrative Patent Judge before
attempting to locate additional information
on the same subject matter? [NMB 23.]
There are several problems with this argument. The first is
that
it is entitled to no consideration because it was not made in
the motion, as required by § 1.637(a). Instead, it was made
for the first time in Nedelk's request for reconsideration of 44
the APJ's decision dismissing the motion, which is improper.
See Gable v. Ericson, 228 USPQ 222, 223-24 (Bd. Pat. App. &
Int. 1985) (party cannot use request for reconsideration to
amplify the showing made in the original motion); Arai v.
Paper No. 64, at 4.44
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