Interference No. 103,891
hearsay in the junior party’s opening brief. The difficulty with
such a holding is that the junior party must rebut the senior
party’s priority case even before it is known what the senior
party is relying on to prove priority of invention.
Accordingly, when the interference rules were amended
in 1995, the commentary interpreted 37 CFR § 1.656(b)(6) to
modify the holding in Suh. Specifically, the commentary states
that current rule 37 CFR § 1.656(b)(6) “does not expressly
require and was not intended to imply, that the opening brief of
the junior party must address the evidence of any other party
with respect to the issue of priority or any other issue.”
1173 Off. Gaz. Pat. & Trademark Office 60 (Apr. 11, 1995);
60 Fed. Reg. 14516 (Mar. 17, 1995). Thus, the precise issue we
are faced with in this interference was contemplated when the
rules were amended in 1995.
Therefore, the motion to strike a portion of the
Flanders reply brief is DENIED.
The motion to file a surreply brief is not specifically
provided for in the rules. However, the same commentary to the
rule change we quoted above indicates that if the junior party’s
reply brief is believed to include a new argument in response to
the case-in-chief of the senior party as presented in the senior
party’s main brief, the senior party may move for leave to file a
7
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007