Interference No. 103,675
unpatentable to allow the parties to express their views on the matter
or even file responsive motions under the preliminary motions rules.
As correctly noted by the APJ in her decisions on this matter (see
Paper Numbers 269 and 284), Section 1.641 may not be relied on to
thwart the interference rules which place the burden of establishing
unpatentability in a preliminary motion on movant.
Bouchard et al.'s argument that the APJ's decision denying
their motion was unreasonable because the APJ never considered
Bouchard et al.'s reply to Chen et al.'s opposition is clearly
erroneous on this record. In Paper Number 284, mailed on July 11,
2000, the APJ specifically reconsidered her earlier decision but in
light of Bouchard et al.'s reply and, again, declined to exercise her
discretion under Section 1.641. As correctly observed by the APJ,
Bouchard et al. failed to establish both that the motion was filed as
soon as it was discovered and that the evidence in support of the
request could not have been discovered earlier.
Additionally, Bouchard et al.'s miscellaneous motion
requesting the APJ to exercise her discretion stated that their
belated preliminary motions No.9 and No. 10 "bring to the attention of
the APJ reasons why the claims in the '580 patent designated as
corresponding to the count may not be patentable" (emphasis added). A
party who charges an opponent with a "failure to disclose" form of
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