Interference 102,728
VI. Decision on Brake’s Preliminary Motion 2
A. Preliminary matters
1. Return of briefs
In response to the mandate from the Federal Circuit, the parties were invited to
file (i) two (2) briefs which were to separately address the written description and
enablement issues raised in Brake’s Preliminary Motion 2 and whether Brake had
sustained its burden of proof to be accorded the benefit of its Application 06/457,325,
filed January 12, 1983, and (ii) one brief addressing Singh’s case for priority. See the
Order Setting Times for Taking Action, Paper No. 171. Singh filed three briefs on
November 3, 2000 and three reply briefs on January 9, 2001. Brake filed three briefs
on December 27, 2000. We point out, however, that this permission to file new briefs
did not exempt the parties from complying with the rules which govern interference
practice before the Board. In particular, we direct attention to:
37 C.F.R. § 1.655(a) which states, in relevant part:
In rendering a final decision, the Board may consider any properly
raised issue, including ... whether an interlocutory order should be
modified. The burden of showing that an interlocutory order should be
modified shall be on the party attacking the order. The abuse of
discretion standard shall apply only to procedural matters [emphases
added].
We further direct attention to:
37 C.F.R. § 1.655 (b) which states, in relevant part:
A party shall not be entitled to raise for consideration at final
hearing any matter which properly could have been raised by a motion
under § 1.633 or 1.634 unless the matter was properly raised in a motion
that was timely filed by the party under § 1.633 or 1.634 and the motion
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