Interference No. 104,192
Cragg v. Martin v. Fogarty
Fogarty’s preliminary motion 12. They further still do not
appear to be contained in Cragg’s principal brief at final
hearing. These arguments do not involve mere statutory4
construction, but are also fact determinative. If the new
arguments were timely raised in Cragg’s opposition to
Fogarty’s preliminary motion 12, pertinent facts could have
been presented by both parties and Fogarty would have had an
opportunity to explore and possibly discredit Cragg’s
assertions. We decline to entertain new arguments which were
not presented in Cragg’s opposition to Fogarty’s preliminary
motion 12.
Accordingly, we address only those arguments of Cragg
which were raised in its opposition to Fogarty’s preliminary
4In its principal brief at final hearing on page 24,
Cragg states: “Michael Dake had assigned his invention to
Mintec and his collaboration with Andrew Cragg on the claimed
invention prior to the filing of the EP applications is
acknowledged. CE1025-1.” This cannot be reasonably construed
as an argument that the European applications filed by MINTEC
SARL were for an invention actually made by Michael D. Dake
and that that would satisfy the filing by assigns requirement
of 35 U.S.C. § 119. In any event, raising such an argument
for the first time in the principal brief at final hearing
would nonetheless be untimely. Exhibit CE1025 also does not
speak of any “collaboration” in the sense of there being a
common goal, but mere discussion, consultation, and
communication between Michael D. Dake and one or more of
Messr. Goicoechea, Cragg, and Hudson on a topic and “whatever
contributions Dr. Dake may have made” (Emphasis added).
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