Interference No. 104,192
Cragg v. Martin v. Fogarty
mere conclusion that Fogarty’s claim 62 is unpatentable under
35 U.S.C. § 112, first paragraph.
In its opposition brief at final hearing, Cragg asserts
that claim 62 of Fogarty’s uninvolved application 08/684,508
is unpatentable under 35 U.S.C. § 112, first paragraph, and
makes a detailed analysis, for the first time, as to why the
assertion has merit. This substantive analysis directed to
Fogarty’s claim 62 was not previously provided in Cragg’s
opposition to Fogarty’s preliminary motion 8. Accordingly,
such analysis will not be entertained for the first time at
final hearing.
We will not compare Fogarty’s claims 62 and 63 and
attempt to figure out which features are common therebetween
such that when Cragg discussed a certain feature of claim 63
when opposing Fogarty’s preliminary motion 8 it was the same
as if it were discussing a corresponding feature in Fogarty’s
claim 62. It was incumbent upon Cragg when opposing Fogarty’s
motion to clearly set forth why Fogarty’s claim 62 is
unpatentable under 35 U.S.C. § 112, first paragraph. It is
not the role of the Board to act as an advocate for either
party by making arguments, presentations, or comparisons which
should have been made by the parties themselves.
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