Interference No. 104,192
Cragg v. Martin v. Fogarty
All reasons for granting a party’s desired relief should
be advanced in the party’s motion. A piecemeal presentation
in which a party may start over with new arguments after an
adverse decision has been rendered would make an orderly
proceeding next to impossible to conduct. Cragg’s brief
offered no excuse for raising the issue of undue breadth issue
so late, more than two years after the filing of Cragg’s
preliminary motion 1 on October 16, 1998, and ten months after
the decision on preliminary motions has been rendered.
Cragg cannot credibly assert that it had no idea that
Fogarty’s claim 41 can possibly be construed so as to not
require the introduction of the anchor section and the first
tubular graft in a single step or simultaneously. As the
moving party, Cragg was attempting to persuade the Board to
adopt a narrow interpretation of Fogarty’s claim 41, i.e.,
that the claim required the introduction of the anchor section
and the first tubular graft in a single step or
simultaneously. The mere filing of Cragg’s motion reflects an
awareness that the claim may not be so construed. Cragg was
very much on notice that the Board may not adopt the narrow
interpretation urged by Cragg. Cragg may not credibly claim
to have been blind-sided by the Board’s not adopting its
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