Additionally, as Goddard loses even with all of his evidence not suppressed, the
Gambaro’s Motion 14 to exclude Goddard’s evidence is moot. Specifically, even considering
the entirety of Goddard's evidence, Goddard has not established an actual reduction to practice.
Accordingly, Gambaro's motion to exclude evidence is dismissed.
Along with its principal brief, Gambaro filed a Miscellaneous Motion 18 requesting the
imposition of sanctions against Goddard under 37 CFR § 1.616 for taking frivolous positions in
this interference. Gambaro requests an award of one hundred and sixty thousand dollars,
$160,000, or greater.
Rule 1.616(a) permits an award of compensatory expenses and/or compensatory attorney
fees for the failure of a party to comply with a regulation or with any order entered by an
administrative patent judge or the Board. Rule 1.616(b) states:
An administrative patent judge or the Board may impose a
sanction, including a sanction in the form of compensatory
expenses and/or compensatory attorney fees, against a party for
taking and maintaining a frivolous position in papers filed in the
interference.
Initially, Gambaro points to a plethora of mis-citations in Goddard’s papers filed in this
interference. The misstatements include a date as November 20, 1992, when the actual date is
November 30, 1992; a date as January 6, 1991, when the actual date is June 6, 1991; and the
citation of 37 CFR § 1.663(f) when the actual rule is 37 CFR § 1.633(f). These mistakes are
self-apparent. Even Gambaro has referred to them as “obviously incorrect.” These mis-citations
reflect general sloppiness of counsel, short of something so reprehensible and innumerable that
an award of any compensatory expenses and/or attorney fees could be justified.
Gambaro also asserts that because Goddard failed to file an appropriate notice under
37 CFR § 1.640(b), Goddard was precluded from re-arguing the denial of Goddard’s motion for
benefit under 37 CFR § 1.633(f). That is correct. Yet, we do not see any justification for
awarding expenses and attorney fees for party Goddard’s inclusion of a section in its brief
regarding its denied motion for benefit. The only consequence that should ensue is that the
section in the brief shall not be considered, as is already our decision here.
Finally, Gambaro asserts that Goddard’s entire case on priority, relying on an alleged
prior actual reduction to practice, is frivolous, because the devices actually constructed were
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