Interference No. 103,675
inequitable conduct must offer clear and convincing proof of the
following elements: (1) materiality of the withheld prior art or
information; (2) knowledge chargeable to the opponent (including the
opponent's counsel) of that prior art or prior information; and, (3)
an intent to mislead the PTO. Kingsdown Medical Consultants Ltd. v.
Hollister Inc., 863 F.2d 867, 872, 9 USPQ2d 1384, 1389 (Fed. Cir.
1988) (en banc), cert. denied, 490 U.S. 1067 (1989). Clear and
convincing evidence has been described as evidence which produces in
the mind of the trier of fact an abiding conviction that the truth of
a factual contention is "highly probable". Price v. Symsek, 988 F.2d
1187, 1191, 26 USPQ2d 1031, 1034 (Fed. Cir. 1993), citing Colorado v.
New Mexico, 467 U.S. 310, 316 (1983). Suspicions as expressed in
Bouchard et al.'s belated motions and their miscellaneous motion do
not rise to the level of clear and convincing evidence. Accordingly,
the APJ properly exercised her discretion and declined to permit the
parties to brief an issue which should have been raised earlier.
Bouchard et al.'s third "bite at the apple" is represented
by their request that should we uphold the APJ's refusal to consider
the belated motions under 37 C.F.R. § 1.633(a) and should we uphold
the APJ's decision declining to exercise her discretion and permit the
parties to present their views on the issues raised by the
aforementioned belated motions then we should, in the interest of
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