Interference No. 104,007
Schmieding’s motion is dismissed. The motion is in effect a miscellaneous motion under
37 CFR § 1.635 but contains no certificate of consultation with the opponent as required by
37 CFR § 1.637(b). M. v. V., 6 USPQ2d 1039, 1040 (Bd. Pat. App. & Int. 1987). The motion is
also dismissed because it includes no documentation establishing the dollar amount of the
attorney fees and expenses incurred by Schmieding as a result of the opponent’s continued
prosecution of the case in spite of its alleged knowledge that the subject matter of its involved
claims is unpatentable to it. Proof of any material fact alleged in a motion must be filed and
served with the motion. 37 CFR § 1.639(a). Still further, the motion is dismissed because it
appears that Schmieding could have timely raised at least the issue of patentability of McGuire’s
claims over the ‘115 patent during the preliminary motions period but did not. Schmieding is
simply not in a position to complain of his opponent’s alleged failure to have this proceeding
terminated earlier where a timely filed motion for judgment by Schmieding could have been
dispositive of this proceeding at an earlier stage.
Even if the motion were not dismissed, it would have been denied on its merits. Whereas
none of the grounds of unpatentability under 35 U.S.C. § 102 has been found timely raised by
Schmieding and considered by the Board on the merits, the charge of Schmieding to the effect
that McGuire has caused Schmieding to incur unnecessary attorney fees and expenses is
unsubstantiated.
McGuire’s Motion for Sanctions
(Paper No. 50, filed August 4, 2000)
McGuire requests an award of compensatory expenses and/or compensatory attorney fees
from October 29, 1997, the date on which this proceeding was declared, to the date on which its
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