Interference No. 102,755
until after the other was disposed of would
accomplish no useful purpose, but, on the
contrary, would result in unnecessary
delay.
Thus, in order to ensure that he would be permitted to argue
the XB-70 patentability issue, Nedelk should have promptly
joined in DeVlieg's timely XB-70 motion and § 1.639(c) request
to take testimony. In addition, Nedelk should have promptly
begun his efforts to obtain further information about the XB-
70 braking system through FOIA.
Moreover, as noted earlier, the motion and DeYoung
affidavit are also deficient for failing to give the dates
when the XB-70 test data were obtained under FOIA and when it
was decided that the test data and information contained
therein were sufficient to prove unpatentability.
For the foregoing reasons, we hold that the APJ did
not abuse his discretion when he dismissed the belated XB-70
motion for failing to show good cause for the belatedness.
4. The excuses for the belatedness
of the on-sale motion
Nedelk's belated on-sale motion, filed July 21,45
1994, relies on only the Wells affidavit and exhibits thereto
that were submitted with Stimson's corrected preliminary
Paper No. 39.45
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