Interference No. 104,007
described in the Kenna patent was made in the U.S. prior to the date of invention of McGuire
et al., thus rendering the claimed subject matter unpatentable under 35 U.S.C. §§ 102(a) and
102(g); and (2) the invention described in the Kenna patent was publicly shown at a trade show
and published in the U.S. more than one year prior to the February 19, 1992 filing date of the
McGuire application, thus rendering the claimed subject matter unpatentable under 35 U.S.C.
§ 102(b).” This statement is manifestly inadequate to excuse the belatedness of the Rule 635
motion with respect to the above two issues of unpatentability. It does not establish that
Schmieding made the discovery after the preliminary motions period. Furthermore, even if it
did, it is well settled that a late motion will not be excused merely because the basis for the
motion was not discovered until it was too late to file the motion on time. Wilcox v. Newton,
1905 Dec. Comm’r Pats. 197 (Comm’r Pats. 1905), Pflingst v. Anderson, 1905 Dec. Commr
Pats. 240 (Comm’r Pats. 1905), Tamura v. Theissen, 205 USPQ 551, 554 (Comm’r Pats. 1979),
and 2 Rivise & Caesar, Interference Law & Practice § 267, at 1080-81 (Michie Co. 1943).4
Accordingly, we will not consider the patentability of McGuire’s claims under 35 U.S.C.
§§ 102(a) and (g), and § 102(b).
We decline to exercise our discretion under 37 CFR § 1.655(c) and will not consider the
issues.
4 Schmieding’s belated motion is in effect three separate motions for judgment based on different grounds of
unpatentability.
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