count. Cooper v. Goldfarb, 154 F.3d at 1327, 47 USPQ2d at 1901.
We hold that Winter has not met its burden.
Winter's principal brief:
In its principal brief (Paper 35), Winter does not argue
that he invented the snowboard key chain of the count prior to
Bergfalk. Instead, Winter argues that he was selling snowboard
key chains "made in the Orient" in 1991, prior to Bergfalk's '498
filing date. Winter does not claim that he invented the key
chains that were sold in 1991. Therefore, it seems to be
Winter's position that Bergfalk is not entitled to a patent since
snowboard key chains were commercially available in 1991. We
find at least two problems with the Winter position:
(1) If it is Winter's contention that Bergfalk is
unpatentable over prior art, e.g., the key chains Winter says he
sold in 1991, then the appropriate action would have been to file
a preliminary motion under 37 CFR § 1.633(a) seeking judgment
against Bergfalk on the ground that the Bergfalk claim is
unpatentable in view of the snowboard key chains that were
commercially available. However, Winter did not file any
preliminary motion.
A party may not raise at final hearing any matter which
properly could have been raised by a motion under § 1.633 unless
the party shows good cause why the issue was not properly raised
by a timely filed motion. 37 CFR § 1.655(b). Winter has not met
its burden in showing good cause why a preliminary motion under
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