Interference No. 102,755
91), which accompanied Stimson's corrected preliminary
statement, on several grounds. The first is that the Wells
affidavit and exhibits thereto concern the merits of the on-
sale motion and the APJ advised the parties that they cannot
argue the merits of dismissed motions at this final hearing. 56
Because Nedelk's excuse for the belatedness of the on-sale
motion depends in part on his efforts to obtain these
documents, they will not be suppressed.
Stimson argues that Nedelk is not entitled to argue57
this "agreement" at this final hearing because the belated
motion did not mention an agreement; instead, it was asserted
for the first time in the reply. Nedelk gives the following
explanation of why the motion fails to mention the alleged
agreement:
[I]t is true that the issue of an agreement
was not raised in Nedelk's initial brief
[sic, belated motion]. The reason is
simple. The undersigned never imagined, in
his wildest dreams, that a counselor with
whom he had engaged in seemingly good faith
settlement discussions on numerous
occasions, would renege on his assurance
that the "torched [sic, scorched] earth"
motion could be filed belatedly. [NRB 11.]
Paper No. 62, at 3 n.4.56
SB 30.57
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