Interference 104,066
are designed to provide orderly procedure and the parties are entitled to rely on their
being followed. Myers v. Fegelman, 455 F.2d 596, 601, 172 USPQ 580, 584 (CCPA
1972). Waiver of the rules, absent compelling circumstances, would defeat their
purpose and substantially confuse interference practice. Id. Thus, it is not appropriate
for a party to file a motion or opposition, wait until after an APJ has rendered an
adverse decision, and then present a new theory to support its position at final hearing.
Accordingly, for purposes of this decision, we have limited our consideration only to
those issues that were raised in Lee’s originally-filed belated motion.
As indicated above, the sole issue before us is Lee’s belated motion 1 pursuant
to 37 C.F.R. § 1.633(b) for judgment that there is no interference-in-fact between “its
involved patent U.S. 5,532,220 and the involved application Serial No. 08/035,366 of
Senior party Vogelstein.” Paper No. 56, p. 1. The motion stands unopposed.
Nevertheless, Lee’s belated motion 1 is DENIED.
As set forth in the Decision on Motion (Paper No. 81), even though there are no
material facts in dispute between the parties with respect to the referenced motion, the
USPTO must nevertheless determine the sufficiency of those facts before granting
relief. Cf. Hsing v. Myers, 2 USPQ2d 1861, 1863 (Bd. App. & Int. 1986). An
agreement between the parties is not binding on the Board. Id. Since the primary
examiner instituted the present interference, it is presumed that an interference-in-fact
exists between those claims of the parties which have been designated as
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