Interference No. 104,192
Cragg v. Martin v. Fogarty
An interference is an inter partes proceeding. The Board
may not suitably act as an advocate for either party, either
to fill in gaps left open in either party’s presentation, or
to offer an alternate rationale and to try to fit the facts to
that rationale, all on its own, particularly when the
considerations are complex and the parties may well differ in
their views. In presenting a preliminary motion for judgment,
a party may not simply plead a statutory section, e.g., 35
U.S.C. § 112, first paragraph, and then rely on the Board to
propose different ways in which the opponent’s claims may
possibly be attacked as being without written description in
the specification. With regard to Cragg’s preliminary motion
1, our decision on preliminary motions addressed the arguments
made by Cragg. The new argument now presented by Cragg is not
entitled to consideration.
For the foregoing reasons, the motions panel properly
denied Cragg’s preliminary motion 1.
D. Cragg’s Preliminary Motion 2
We adopt in its entirety the discussion in our decision
on preliminary motions (Paper No. 108), which is reproduced
below, and then add a few more comments to address Cragg’s
brief at final hearing:
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