Interference No. 103,379
Decision on Reconsideration
the evidence on which Seifert intends to rely to demonstrate
compliance with 35 U.S.C. § 251 was due with the opposition to
Dance's 37 CFR § 1.633(a) motion. See Irikura v. Petersen,
18 USPQ2d 1362, 1368 (Bd. Pat. App. & Int. 1990) ("A good
faith effort must be made to submit evidence to support a
preliminary motion or opposition when the evidence is
available. Orikasa v. Oonishi, [10 USPQ2d 1996, 2000 n.12
(Comm'r Pats. & Trademarks 1989)].") Further- more, in Paper
No. 54 (at 12) the Administrative Patent Judge advised the5
parties that any new evidence submitted in connection with
previously filed motions "may be submitted with respect to
such motions only upon a showing (§ 1.635) that the evidence
was unavailable when the corresponding motion, opposition or
reply was filed. Such a motion must be filed at least 10 days
prior to the end of that party's relevant testimony period."
As no Bookstein declaration was filed by the end of Seifert's
testimony period (with or without an accompanying § 1.635
motion), Dance's motion to strike was due with his opening
"ADDITION OF SEIFERT CLAIM 1; SCHEDULE FOR § 1.640(b)5
STATEMENTS, TESTIMONY, RECORDS AND BRIEFS," mailed November 15,
1996.
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