Interference No. 103,891
Flanders’ reply brief or in the alternative permit filing of a
Moorman surreply brief. Flanders filed an opposition to these
alternative motions, and Moorman filed a reply. Moorman specifi-
cally requests that sections III through VI of Flanders’ reply
brief be stricken. Moorman states that these sections contain an
extensive attack on Moorman's conception and reduction to prac-
tice including an analysis of Moorman’s evidence. We agree as to
what they contain.
Moorman first argues that Flanders’ failure to cross-
examine raises a presumption that the testimony is accurate.
However, Moorman misapprehends the nature of Flanders' attack.
Flanders’ argument is that even if all of Moorman's testimony
is true, Moorman still has not established a necessary factual
basis for conception or reduction to practice. Flanders is
under no obligation to patch up holes in Moorman’s case by
cross-examination.
Next, Moorman argues that Flanders’ brief should be
stricken, since Flanders should have attacked Moorman’s priority
case in Flanders’ opening brief. For this premise, Moorman cites
37 CFR § 1.656(b)(6) and particularly the case of Suh v. Hoefle,
23 USPQ2d 1321, 1323 (Bd. Pat. App. & Int. 1991). In Suh, the
Board had held that the junior party should have raised the issue
that the senior party’s case for priority was defective for
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