Interference No. 104,007
McGuire’s claims are unpatentable to McGuire over the ‘115 patent, there was no reason for
McGuire to introduce its Rule 131 declarations into evidence in this proceeding. Without such a
motion from Schmieding, an issue of patentability of McGuire’s claims over the patent would
not have been extant in this proceeding, and McGuire would have had no reason to introduce
Rule 131 affidavits into evidence.
In accord with our decision denying the motion under Rule 635, Schmieding’s motion for
judgment under Rule 633(a) (Paper No. 45), to the extent it is based on the ‘115 patent, is
dismissed as belatedly filed. 37 CFR § 1.645(b). Furthermore, we decline to exercise our
discretion under 37 CFR § 1.655(c) and will not consider the issue.
Patentability of McGuire’s Claims under 35 U.S.C. §§ 102(b) and 102(g)
In its brief, Schmieding argues that McGuire’s claims are unpatentable to McGuire (1)
under 35 U.S.C. § 102(b) because the Kenna femoral aimer instrument of the ‘115 patent was
publicly demonstrated at a trade show by Dr. Douglas Jackson more than one year prior to
McGuire’s date of application for a patent in the United States, and (2) under 35 U.S.C. § 102(g)
because the invention was invented in September 1988 by Robert V. Kenna.
These arguments were first made by Schmieding in its belated motion for judgment under
37 CFR § 1.633(a) filed July 12, 2000 (Paper No. 45). However, Schmieding’s motion under
37 CFR § 1.635 for consideration of the belated motion for judgment, in effect, only attempts to
show good cause why the paper was not timely filed with respect to the argument that McGuire’s
involved claims are unpatentable over the ‘115 patent to Kenna. Otherwise, the Rule 635 motion
only states in footnote 3, page 3, that “Schmieding has discovered that: (1) the invention
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