Interference No. 105,125
Chaffee v. Skulnick
2. Hahn v. Wong, 13 IJSPQ2d 1211 (Bd. Pat. Aýp. & Int.), affd, 892
F.2d 1028, 13 USPQ2d 1313 (Fed. Cir. 1989).
3. Huston v. Ladner, 973 F.2d 1564,1567, 23 USPQ2d 1910,1913
(Fed. Cir. 1992) (allegations that party's attorney misrepresented his competence
and ability to present party's prima facie showing under 37 CFR § 1.608(b), and
that attorney acted in reckless and grossly negligent manner in filing original
evidence are not sufficient to establish "good cause" under 37 CFR § 1.617(b)).
Citing Ing v. Chiou, 200 USPQ 558 (Comm'r Pat. & Trademarks 1978), junior party
Chaffee, on page 4 of its response to the show cause order, argues that because it had reasonably
believed that its original showing under 37 CFR § 1.608(b) was sufficient, good cause exists for
allowing it to submit additional evidence. In Ing, sqpr , it was held that the board's finding that
the applicant had a good enough excuse for not having initially submitted other affidavits did not
constitute an abuse of discretion. That left open the possibility that the board also could have
found the excuse unsatisfactory. It was stated in Iniz, 200 USPQ at 559: "It goes without saying
that the sufficiency of any 'showing' made pursuant to the above-quoted portion of the rule must
be made on a case-by-case basis."
Here, even assuming that junior party Chaffee thought that its initial submission was
sufficient to demonstrate a prima facie entitlement to priority, that belief has not been shown to
have been reasonable. That the photographs included in the original Rule 608(b) showing do not
illustrate all sides of the claims design is indisputable and has not been disputed by Chaffee.
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