Interference No. 104,180
which were well known in the art and which would have been obvious in view of the junior
party’s disclosures, the senior party is not entitled to patent the invention of the count.
This issue is dismissed as belatedly raised. A party shall not be entitled to raise for
consideration at final hearing any matter which properly could have been raised by a motion
under 37 CFR § 1.633 unless the matter was properly raised in a motion that was timely filed by
the party under § 1.633 and the motion was denied or deferred to final hearing. 37 CFR
§ 1.655(b). At the beginning of the preliminary motions period, the party Bartz was obviously
aware of the alleged communication it made of count elements 1, 3, 4 and 7, and is charged with
knowledge of the evidence upon which it contends the other elements of the count were known
and, along with the communicated count elements, would have rendered the subject matter of the
invention unpatentable to the senior party. Nevertheless, Bartz filed no motion for judgment
under § 1.633(a) on this ground.6 Nor has Bartz shown good cause why the issue was not
properly raised by a timely filed motion. 37 CFR § 1.655(b).7
Joint Inventorship of the Parties
Lastly, the party Bartz argues that if it is not the sole inventor, the junior and senior
parties are joint inventors.
This argument is dismissed as untimely. Although Bartz does not state what relief it
seeks with respect to this argument, it apparently seeks a correction of inventorship in its
6 Bartz did file a timely motion for judgment under § 1.633(a) on a different ground (Paper No. 10). The motion
was denied (Paper No. 34) and Bartz is not arguing the different ground for unpatentability at final hearing.
7 Even if this issue were entitled to consideration at this time, it would have been denied on its merits. The prior art
evidence upon which Bartz relies, testimony by Richard Martin and Douglas DeWerth and documents referred to
therein, does not disclose the subject matter of element 2 of the count involving the specific combustion zone and
plenum structure. Still further, even if this structure were taught in the prior art, no motivation is established why
one of ordinary skill in the art would have combined that teaching with elements 1, 3, 4 and 7 of the count.
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