Interference 102,728
rely on information or evidence presented therein, for his case-in-chief. If so,
then the burden was on Singh to give his own notification under 37 CFR §
1.671(e). That is, if the Brake and Mullenbach declarations contained
information which was crucial for Singh, he should not have assumed that Brake
would rely on these declarations but, rather, he should have acted in the first
instance, to make the information a part of his own record.
However, not having availed himself of the preemptory opportunity to
obtain testimony from Drs. Brake and Mullenbach, Singh still was not without
recourse. Subsequent to Brake’s Notification Pursuant to 37 CFR § 1.671(e)
(Paper No. 130), Singh could have filed an additional motion under 37 CFR §
1.635 requesting entry of the declarations, but did not do so. Thus, not having
pursued either of the routes available for obtaining information or testimony,
Singh is in a poor position to argue that he was denied the benefit of “cross
examining” a witness.
On the other hand, if Singh did not intend to rely on information in the
Brake declaration for his case-in-chief, and only wanted to cross-examine the
declarants with respect to inaccurate or offensive statements made therein, then
Singh should have no objection to the removal of such information by the senior
party [footnote omitted]. Clearly, if Brake is no longer relying on evidence which
Singh believed to be objectionable, there is no need for cross-examination.
Accordingly, in our consideration of Brake’s Preliminary Motion 2 below, we
consider only the Tekamp-Olson, Johnson and Schekman declarations.
2. Our Findings with Respect to Preliminary Motion 2
Turning to Brake’s Preliminary Motion 2, we point out that the burden is on
Singh, as the attacking party, to establish that the APJ erred in granting the referenced
motion. 37 C.F.R. § 1.637(a).
We are not satisfied that Singh has sustained its burden of showing that the APJ
erred in holding that the ‘325 Application constitutes a constructive reduction to practice
of the subject matter of the count. Accordingly, the decision to grant Brake’s
Preliminary Motion 2 will not be overturned. Our reasons follow.
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