Interference No. 104,192
Cragg v. Martin v. Fogarty
In short, Cragg wants the board to now hold Fogarty’s
claims 41-69 as being without written description in the
specification for a reason other than that articulated and set
forth by Cragg in its preliminary motion 1. We decline to
consider this new argument at the final hearing stage of the
proceeding. Final hearing under the interference rules is not
a place to begin preliminary motions afresh. Rather, we are
here to review the decision by a three-member motions panel on
preliminary motions made by the parties, on the evidence and
arguments which formed the basis of the decision on
preliminary motions.
A new reason for granting a motion should not be
considered at final hearing if it was not included in the
original motion and not supported by a showing of good cause
why the argument was not earlier presented. Fredkin v.
Irasek, 397 F.2d 342, 346,
158 USPQ 280, 284 (CCPA 1968); Koch v. Lieber, 141 F.2d 518,
520, 61 USPQ 127, 129 (CCPA 1944); Bayles v. Elbe, 16 USPQ2d
1389, 1391 (Bd. Pat. & Int. 1990)(“It has been a long standing
practice that a party whose motion was denied cannot present
at final hearing grounds not included in the original
motion.”). It is inappropriate for a party to present
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