Interference No. 104,049
55). Sink's response and motion for testimony are both fatally flawed and, therefore, are
dismissed for the following reasons:
The response to the show cause order does not request that a final hearing be set to review
any decision which is the basis for the show cause order, or to review any other issue decided in
the associated Decision on Motions (Paper No. 53).
Rather, for the first time in these proceedings, Sink raises the issue of "prosecution
laches" as a basis for challenging the patentability of Scott's involved claims. According to
Sink, the doctrine was articulated by the Federal Circuit in Symbol Technologies, Inc. v.
Lemelson Med. Educ, and Res. Fdn., 277 F.3d 1361, 61 USPQ2d 1515 (Fed. Cir. 2002), and
extended in In re Bogese, 303) F.3d 1362, 64 USPQ2d 1448 (Fed. Cir. 2002), cases decided on
Jan. 24, 2002 and Sept. 13, 2002, respectively.
Sink has not shown good cause why the issue of "prosecution [aches" could not have
been raised earlier in these proceedings by way of a miscellaneous motion under 37 CFR
§ 1.635.
Accordingly , the belatedly raised issue of "prosecution laches" will not be considered in
this proceeding. 37CFR § 1.645 (b).
Furthermore, we note that even if Sink had raised the "laches" issue in a timely manner,
the burden would have been on Sink to show not only a delay in prosecution of the senior party's
series of co-pending applications but, also, that the delay was an unreasonable delay attributable
to the senior party. In this regard, we note that the parent applications of Scott et al. were subject
to secrecy orders for over 20 years, a fact not recognized or addressed in the arguments presented
2
4ý P1 .0ri
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