Interference 102,728
was denied or deferred to final hearing, the matter was properly raised by
the party in a timely filed opposition to a motion under § 1.633 or 1.634
and the motion was granted over the opposition or deferred to final
hearing, or the party shows good cause why the issue was not properly
raised by a timely filed motion or oppositions [emphases added].
Thus, in order to be entitled to reversal of the decision of the APJ granting
Brake’s Preliminary Motion 2, Singh has the burden of showing that the interlocutory
order should be modified. 37 C.F.R. § 1.655(a). However, the availability of review
does not entitle Singh to present new arguments which could have been raised in his
original opposition to Brake’s motion. 37 C.F.R. § 1.655 (b).
Turning to the briefs on the issues of written description and enablement
provided by Singh subsequent to the Order for Setting Times for Taking Action (Paper
No. 171), we find that Singh has ignored the requirement that it has the burden of
showing that the interlocutory order should be modified. 37 C.F.R. § 1.655(a). We also
find, in spite of our explicit reminder in our Final Decision of August 31, 1998, that only
issues which were properly raised in the original opposition were entitled to review at
final hearing,8 Singh has used the opportunity of filing new briefs to present new
arguments. See also, Singh v. Brake, 222 F.3d at 1371, 55 USPQ2d at 1679 (“we
remand to the Board for a determination of those issues that were properly raised
8 In its final decision, the Board stated that
Singh is presenting additional arguments that could have been made in his
original opposition to Brake’s motion, but he did not do so [Paper No. 164, p. 11,
fn. 8].
Pointing to 37 C.F.R. § 1.655(b), the Board further stated that it would not
consider these arguments. Id.
13
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