DANCE V. SEIFERT et al. - Page 5




           Interference No. 103,379                                                            
           Decision on Reconsideration                                                         

           3).  Dance's reliance on the preliminary statement is improper                      
           because it is not evidence.   37 CFR § 1.629(e).  Furthermore,                      
           the contention that the evidence establishes an actual                              
           reduction to practice fails because this evidence does not                          
           establish that (1) prior to Seifert's filing date, Dance                            
           constructed an embodiment that met every element of the                             
           interference count and (2) this embodiment operated for its                         
           intended purpose.  Eaton v. Evans, 204 F.3d 1094, 1097,                             
           53 USPQ2d 1696, 1698 (Fed. Cir. 2000).                                              
           B.  The timeliness of Dance's motion to strike the initial                          
           reissue declarations of Seifert, Downey, and Shank                                  
                      At pages 31-33 of the Decision, we held that Dance                       
           has not shown good cause under § 1.645(b) for waiting five and                      
           one-half months after the oral hearing to file the motion to                        
           strike the initial reissue declarations of Seifert, Downey,                         
           and Shank on the ground that they contain inadmissible hearsay                      
           due to absence of a supporting declaration by Seifert's                             
           counsel, Mr. Bookstein.  We treated this motion as a motion to                      
           suppress evidence under § 1.656(h), which specifies that such                       
           a motion is due with the moving party's opening brief.                              
           Dance's argument that the motion should be considered timely                        
           because "it was only from and after that October 14, 1999[,]                        

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