Interference No. 103,836
“A-308” and forward a copy of any relevant document to me. I received the two
page document dated April 10, 1992 (copy attached as Exhibit No. 11) from
Mr. Simonelli by facsimile transmission on July 15, 1999.
10. I promptly confirmed with Mr. Beam that he remembered disclosing the
invention of the ‘370 patent during a meeting with Mr. Shackelford and that the
two page document (Exhibit No. 11) was prepared by Mr. Shackelford during that
meeting. Mr. Beam also remembered that he conceived his invention during a
visit to a business performing a machining operation on Hayes wheels and that
Hayes employees including Tom Heck were present.
11. I confirmed with Mr. Heck that he remembered the visit described to me
by Mr. Beam and the disclosure of the invention by Mr. Beam during that visit.
Although Mr. Heck did not remember the date of the visit, he did remember that
Hayes employee Al Coleman was present. I advised Mr. Heck that we had
located a document that suggested the visit was before April 10, 1992 and
Mr. Heck stated that he would search his records for the date of the visit and
would contact Mr. Coleman for any information that he could provide. Mr. Heck
reported to me on July 16, 1999 that he and Mr. Coleman reviewed their 1992
appointment books and pinpointed the date of March 19, 1992 as the day of the
visit with Mr. Beam during which Mr. Beam disclosed his invention to them.
The motion is denied. Beam’s motion to correct material error in its original
preliminary statement was filed after the June 18, 1999 date set by the APJ for service of
preliminary statements. Under this circumstance, Beam is required to make a satisfactory
showing that such action is essential to the interests or ends of justice, 37 CFR § 1.628(a), third
sentence. This rule’s predecessor section, 37 CFR § 1.222, has been interpreted as requiring a
showing that errors could not have been avoided by the exercise of reasonable care and that the
moving party was not negligent in preparing the original preliminary statement. Fleming v.
Bosch, 181 USPQ 761, 765 (Bd. Pat. Int. 1973); Moler v. Purdy, 131 USPQ 276, 277 (Bd. Pat.
Int.1960). The declaration of Clemens is to the effect that he simply failed to inquire about the
file labeled “A-308” related to the invention of the ‘370 patent. Clearly, this does not satisfy the
aforementioned requirement of a showing that the error could not have been avoided by the
exercise of reasonable care and that the moving party was not negligent in preparing the original
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