Interference 102,728
description. Therefore, we will not consider any of Singh’s arguments (Paper
No. 151, pp. 46-60) that the Brake 1 application fails to provide an adequate written
description of the count since they were not timely filed. 37 C.F.R. § 1.655(b). To that
end, we direct attention to our discussion on pp. 14-15, above, that review of a
preliminary motion at final hearing is not a means of reopening prosecution and
presenting new arguments. There, we pointed out that the rules governing
interferences provide an orderly procedure and that the parties are entitled to rely on
their being enforced by the Board. Myers v. Fegelman, 455 F.2d at 601, 172 USPQ at
584. If the Board does not follow and enforce PTO rules, then the parties might be
tempted to ignore them too, as Singh has done here.
Moreover, consideration of Singh’s new arguments would be grossly unfair to
Brake. Such action would permit Singh, in effect, to file a new Opposition, without
extending the same courtesy to Brake. Thus, Brake would have been limited
exclusively to the arguments it made in the preliminary motion in the first instance,
without placing similar limitations on Singh.
Accordingly, the arguments set forth on pp. 46-60 of Singh’s brief (Paper No.
151) are herein DISMISSED.
b. Enablement
As we pointed out on p. 28, above, Singh did not discuss whether Brake 1
satisfies the enablement requirements of the first paragraph of § 112 in the Opposition
filed in Paper No. 30. We considered some of Singh arguments as intending to
demonstrate that the teachings of Brake 1 would not have enabled one skilled in the art
42
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