Interference No. 103,891
reply to the junior party’s reply brief. See Id. Presumably,
the commentator is of the view that these senior party replies
should be liberally admitted. As discussed below, Moorman’s
surreply is a combination of rearguing and filling holes in his
priority case-in-chief along with an actual response to the
junior party’s new argument. We would be fully justified in
denying consideration to the entire surreply. Nonetheless, in
the interest of justice, we will admit the portions of Moorman’s
surreply brief which we consider are directed to the specific
argument made in the Flanders reply. The motion for leave to
file a surreply brief and have it considered at final hearing
is GRANTED-IN-PART as indicated below.
Moorman’s surreply brief is of two separate parts
intermixed together. In one part, Moorman reargues his priority
case.6 This portion of the surreply is completely unacceptable,
6 As some examples of how the surreply brief reargues
Moorman’s priority case: Moorman’s main brief does not apply
Moorman’s proofs to the terms of the count. Moorman’s sole
discussion or explanation of how the record supports the count
is the first paragraph of page 5 of his main brief. It does not
mention the alleged reductions to practice of November 11 or
November 21, 1988 which are discussed for the first time on
page 4 of the surreply. Exhibits 9-13 are not discussed in the
main brief, but they are relied on to prove priority in the
surreply. Moorman’s surreply relies extensively on MX3 as a
reduction to practice. We do not believe MX3 is even mentioned
in the Moorman main brief.
8
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