Interference No. 104,681
Spears v. Holland
LeVeen v. Edwards, 57 USPQ2d 1406 (Bd. Pat. App. & Int. 2000).
Part Cl(a) of that opinion is reproduced below, LeVeen, 57 USPQ2d
at 1412:
C. Opinion
1. Failure to follow applicable procedure
a.
Edwards, contrary to 1 13 of the NOTICE
DECLARING INTERFERENCE, has incorporated
"arguments" from the Siperstein and Sheehan
declarations (Exs 5010 and 5015) into Edwards
preliminary motion 1. Edwards misperceives
the role of motions and evidence.
Declarations are evidence. A motion is
supposed to (1) lay out all relevant facts,
with reference to the evidence which supports
the facts, and (2) present an argument why
the facts justify any relief requested in the
motion.
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 decisionmaking
(Paper 1, page 10 n.7). Essentially,
incorporation by reference is an
inappropriate role-shifting technique which
makes it a decisionmaker'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
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