Interference 103,781
that the evidence of record as a whole is sufficient to
establish Adang’s conception of the invention of Count 2 prior
to December 12, 1986, for reasons stated hereinabove, we are not
satisfied that Adang exercised reasonable diligence toward
reduction to practice of an invention of any claim defining
Count 2, from just prior to Fischhoff’s December 12, 1986,
conception of the invention of Count 2, to Adang’s September 9,
1988, constructive reduction to practice. Senior Party Adang has
not shown that it was first to invent the subject matter of
Count 2 of this interference.
5. Adang’s Argument: VI. The Unpatentability
of Fischhoff’s Claims In View of the Invention
of Kenneth Barton and Michael Miller
A. Adang’s complaint
Adang complains that an APJ abused its discretion in two
ways. First, the APJ is said to have abused its discretion by
denying Adang permission to renew its previously filed
Preliminary Motion No. 3 under 37 CFR § 1.633(a) and request for
discovery (Paper No. 47) or to file a new preliminary motion
under 37 CFR § 1.633(a) and new request for discovery. Second,
the APJ is said to have abused its discretion by refusing to
remand Fischhoff’s involved application to a primary examiner
for judgment on the patentability of all Fischhoff’s claims
designated as corresponding to the interference count under
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