Interference No. 102,755
This explanation misses Stimson's point, which is that §
1.637(a) requires a motion to contain all of the arguments on
which the movant intends to rely to show prima facie
entitlement to the relief sought. The sole purpose of a reply
is to address any new points raised in the opposition (§
1.638(b)), not to correct deficiencies in the motion that are
pointed out in the opposition. Consequently, we agree with
Stimson that Nedelk's argument that he believed in the
existence of the agreement in question is entitled to no
consideration. A fortiori, the APJ's decision to dismiss the
§ 1.633(a) motion for failing to prove the existence of such
an agreement was not an abuse of discretion.
We would reach the same conclusion even if the
motion as filed were construed as implying either the
existence of an agreement or Nedelk's belief in the existence
of an agreement, in which case Nedelk would not be precluded
from arguing the agreement at final hearing. Although
Nedelk's reply is accompanied by affidavits purporting to
establish an agreement or at least Nedelk's belief in an
agreement, this evidence is entitled to no consideration,
because Nedelk has not demonstrated that this evidence could
not have been filed with the motion. 37 CFR § 1.639(a);
Irikura, 18 USPQ2d at 1368; Bayles, 16 USPQ2d at 1392;
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