Interference 102,728
and oppositions. 37 C.F.R. § 1.655(b). Review of a decision on a preliminary motion at
final hearing is not a tool which a party can employ to reopen prosecution and present
new arguments. We direct attention to our discussion above that the interference rules
state that if an issue could have been raised in a preliminary motion and was not-- a
party is not entitled to raise the issue at final hearing. 37 C.F.R. § 1.655(b). The rules
are designed to provide orderly procedure and the parties are entitled to rely on their
being followed. Myers v. Fegelman, 455 F.2d 596, 601, 172 USPQ 580, 584 (CCPA
1972). Waiver of the rules, absent compelling circumstances, would defeat the
purpose of the rules and substantially confuse interference practice. Id. Thus, it is not
appropriate for a party to file a motion or opposition, wait until after an APJ has
rendered an adverse decision, and then present a new theory to support its position at
final hearing. Motions and oppositions are not to be filed piecemeal, they must be
completed within the set time. 37 C.F.R. §§ 1.637(a) and 1.638(a). As discussed
above, because Singh’s briefs, filed November 3, 2000, contain, almost exclusively,
new arguments, and lack the required showing that Preliminary Motion 2 should be
modified (37 C.F.R. § 1.655(a)), they are being returned. For purposes of this decision,
we have limited our consideration only to those issues that were properly raised in
Singh’s briefs filed in Paper Nos. 151 and 160.
To eliminate any doubt as to respective arguments each of the parties made
during the motions period concerning Brake’s Preliminary Motion 2 for benefit, we have
attached Brake’s Preliminary Motion 2, Singh’s Opposition and Brake’s Reply to the
Opposition, as Appendices 1-3, to this opinion.
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