Interference No. 104,007
motion for sanctions was filed. The argument is made that Schmieding has wasted the time of
the parties and of the Board in not filing its preliminary motion for judgment based on the ‘115
patent to Kenna during the preliminary motion period.
The motion is dismissed because it includes no documentation establishing the
dollar amount of the attorney fees and expenses incurred by McGuire as a result of the
opponent’s failure to file its preliminary motion for judgment based on the ‘115 patent during the
preliminary motion period. Proof of any material fact alleged in a motion must be filed and
served with the motion. 37 CFR § 1.639(a).
Even if the motion were not dismissed, it would have been denied on the merits. A
reason submitted by Schmieding for not having timely filed its motion for judgment during the
preliminary motions period is that it believed McGuire would rely upon Rule 131 declarations
filed during ex parte prosecution of its involved application to overcome any finding of
unpatentability of its involved claims over the ‘115 patent. Although we have found that this
explanation does not rise to the level of a showing of good cause why the paper was not timely
filed under 37 CFR § 1.645(b), the showing is not frivolous or unreasonable so as to justify the
imposition of sanctions.
In view of the fact that the party McGuire is the acknowledged prior inventor and that all
challenges to the patentability of its corresponding claims have been dismissed as untimely,
McGuire is entitled to prevail.
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