Interference No. 104,190
The junior party briefs also raise an argument based
on the concession of priority by the senior party in another
interference between the parties of interest in this
interference. The interference was Interference No. 103,765
between Rydell and senior party Slater. It is axiomatic that
the sub-ject matter of the other interference is patentably
distinct from the subject matter at issue in this final
decision. Thus, any decision in the other interference
respecting priority lacks common subject matter and common
parties. In our view, it is simply immaterial to the subject
matter at issue in this interference.
Furthermore, in the junior party’s main brief, there
is not even an explanation or theory of why the concession
raises the issue of estoppel. We are presented with merely
the charge that the senior party is estopped to argue
abandonment, suppression or concealment. We consider this
estoppel argument part of the junior party’s case in chief.
See 37 CFR § 1.656(b)(6). Failure to provide a theory or
explanation disadvantages a senior party that can only guess
as to what argument to respond to. Accordingly, we hold that
the junior party is barred on procedural grounds from raising
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