Interference No. 103,379
Decision on Reconsideration
hearing date that it was absolutely clear that no further
declaration from Attorney Bookstein would ever be submitted"
(Motion at 4) was rejected on the ground that "Dance knew as
of the due date for his opening brief, which was subsequent to
the close of Seifert's testimony period, that no Bookstein
declaration had been filed" (Decision at 33). Dance now
argues (Request at 3-4) that
[t]he rules must not be that unambiguous on
the point of when it is absolutely clear
that such a declaration would not be
forthcoming because, as is noted by the
Board on the top of page 31 from Seifert's
brief, apparently with approval[:]
[]No supporting declaration was filed
by Bookstein, although Seifert's brief
for final hearing states that "should
it become necessary or desirable to do
so, such a declaration can and will be
furnished[."]
Our observation that Seifert's brief included an offer to file
a Bookstein declaration was not intended to imply prospective
approval of that offer. This should be apparent from the fact
that the offer was mentioned in the summary of the background
facts of Dance's § 1.633(a) motion for judgment under
35 U.S.C. § 251 (Decision at 28-31) rather than in the
discussion of Dance's motion to strike (id. at 31-36). All of
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