III. DISCUSSION
A. Procedural issues
We note that each party argues that the other party, at times, fails to comply with proper
procedure in presenting its arguments in its preliminary motions. Both parties point to our
decision in LeVeen v. Edwards, 57 USPQ2d 1406 (BPAI (ITS) 2000).
As noted by Glaxo, LeVeen was decided after the initial preliminary motions were filed
in the interference (Paper 154 at 3). However, to the extent Glaxo is arguing that LeVeen should
not apply in the present interference, we note that the decision in LeVeen did not present any
new procedural requirements for interferences. For example, LeVeen discussed requirements
found in the Notice Declaring Interference (Paper 1).
One portion of LeVeen, set out below, discusses improper incorporation by reference,
57 USPQ at 1412:9
The NOTICE DECLARING INTERFERENCE explicitly precludes incorporation
by reference of arguments. There are numerous reasons why an agency, in general or in a
particular case, may preclude incorporation by reference in papers presented to the
agency. First, an incorporated argument may be overlooked (Paper 1, page 10 n.7).
Second, incorporation of arguments is not consistent with efficient decision making
(Paper 1, page 10 n.7). Essentially, incorporation by reference is an inappropriate
role-shifting technique which makes it a decision maker's job to (1) scour the record, (2)
come up with some theory which supports a party's case and (3) articulate a rationale in
an opinion supporting the rationale without giving an opponent a reasonable chance to
address the rationale. Third, through incorporation by reference an attorney can avoid
page limitations applicable to motions (Paper 1, page 27 ¶ 28). Compare DeSilva v.
DiLeonardi, 181 F.3d 865, 866-67 (7th Cir. 1999) (“[a]doption by reference amounts to a
self-help increase in the length of the * * * brief. * * * [I]ncorporation by reference is a
9 ¶ 13 of the Notice Declaring Interference states that (Paper 1 at 9):
Arguments presented in one paper shall not be incorporated by reference to
another paper.
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