Interference No. 103,675
could have been and should have been raised during the preliminary
motions period or at least as early as October 1996, when Bouchard et
al. believed the evidence submitted by Chen et al. did not comport
with the position taken by Chen et al. in their case-in-chief. In the
words of the APJ, "Waiting more than three years after suspicions
arose is not a valid excuse for failing to act in a timely manner."
Page 8 of Paper Number 284. This is especially so because Bouchard et
al. eschewed acting in the time period specifically afforded the
parties for taking "testimony on the issue of whether examples 3, 5
and 6 of the benefit applications produce compounds within the scope
of the counts ..." set by the APJ in her decision on August 22, 1996
(Paper Number 53).
We have not overlooked Bouchard et al.'s argument that they
did not file the motion in 1996 because they only had suspicions and
not the evidence they recognized was required to justify granting
their motion for judgment. Nevertheless, the interference rules
provide8 that in such an instance the proper action to take is to:
file the motion for judgment; explain the nature of the evidence which
would support granting the relief requested in the motion; name the
person or persons who would testify and what said person or persons
would testify to as set forth in 37 C.F.R. § 1.639(d) through (g);
8 37 C.F.R. § 1.639(c) and 37 C.F.R. § 1.639(e).
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