Interference No. 103,675
observed by the APJ, Bouchard et al. had more than ample time from the
date of the declaration of this interference through the testimony
period in which to pursue their theory of unpatentability based on
inequitable conduct and enablement. There can be no justification for
Bouchard et al.'s conscious decision to wait until after the testimony
phase of this proceeding had concluded to attempt to raise these
issues in this proceeding.
As admitted by Bouchard et al. in their statement of facts,
Bouchard et al.'s "suspicions" about the separation technique used in
the examples from Chen et al.'s first filed application were raised
during the cross examination of Chen et al.'s witnesses in the time
period ranging from November 1996 through February 1997. Bouchard et
al. have failed to adequately explain why, in light of their aroused
"suspicions" in 1997 they waited until the fall of 1999 to repeat the
examples of Chen et al.'s involved patent. As Bouchard et al. have
observed, Chen et al. served their evidence for their case-in-chief in
late October 1996, and it was the alleged absence from that evidence
of the nature of the sample given to Mr. Pack for separation that
further raised Bouchard et al.'s suspicions.
We also agree with the APJ's observations as set forth in
Paper Number 284 that there is no adequate explanation for why
Bouchard et al. waited until 1999 to file a motion on issues that
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