Interference No. 103,675
represent on information and belief that the evidence was in the
possession of Chen et al.; file a motion for additional discovery of
that evidence under 37 C.F.R. § 1.687(c); and, request deferral of a
decision on the motion until final hearing. This Bouchard et al. did
not do.
Having failed to establish "good cause" for belatedly
raising the issues of inequitable conduct and enablement under 37
C.F.R. § 1.633(a), Bouchard et al. then attempted a second "bite at
the apple" by raising the same issue but under the color of a request
in the form of a miscellaneous motion under 37 C.F.R. § 1.635
requesting that the APJ exercise her discretion and issue an order
permitting the parties to express their views on the issue. We
consider Bouchard et al.'s request that the APJ exercise her
discretion under 37 C.F.R. § 1.641 to be a not so thinly veiled
attempt to circumvent the orderly procedures established by the rules
and followed by the APJ in the interlocutory phase of this proceeding.
As correctly observed by the APJ in her decision declining to exercise
her discretion and declining to enter an order permitting the parties
to express their views on the issue of alleged inequitable conduct,
the rule expressly entrusts that decision to the sound discretion of
the APJ. Specifically, the rule permits an APJ who becomes aware of a
reason why a claim designated as corresponding to the count is
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