Interference 102,728
The original merits panel also noted Singh’s argument that
in support of its Motion (2) and its Reply to Singh Opposition to Motion (2),
Brake submitted a total of eight declarations. At the time of submission,
Singh did not have the opportunity to cross-examine these declarants
regarding their supporting declarations. The APJ, inter alia, in view of
these supporting declarations granted Brakes [sic, Brake’s] Motion (2)
over Singh’s timely filed opposition. After the APJ’s ruling, Brake withdrew
four of these supporting declarations, including two submitted by Dr.
Brake, the inventor. The Board should reconsider the APJ’s decision in
light of Brake’s withdrawal of these declarations from its case in chief
[Brief, p. 45].
Like the original merits panel we, too, find this objection puzzling. Final Decision,
Paper No. 164, pp. 7-8. We note that Brake elected to rely solely on the declarations of
Drs. Tekamp-Olson (2), Johnson (1) and Schekman (1) for its case-in-chief. See Brake
Notice Pursuant to 37 CFR § 1.671(e), submitted in Paper No. 130. Thus, although
Singh does not indicate which declarations it is objecting to the “removal” of, it appears
that Singh is referring to the declarations of Drs. Brake (2) and Mullenbach (2).11 Paper
No. 151, p. 45.
To that end we are in agreement with the original merits panel’s statement (Final
Decision, Paper No. 164, pp. 7-8) that:
... it is not clear whether Singh is objecting to the "removal" of the
declarations of Dr. Brake, and/or Dr. Mullenbach, because he had intended to
11 We note Singh’s statement on p. 54 of its Brief (Paper No. 151) that the
declarations of Drs. Schekman and Tekamp-Olsen are the only declarations submitted
to support Brake’s position that the ‘325 Application provides an adequate written
description of a species within the scope of the count. Singh does not mention the
declarations of Drs. Johnson and Mullenbach. As we understand it, Dr. Johnson’s
declaration was relied upon by Brake for it’s case-in-chief.
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