Interference 103,781
35 U.S.C. § 102(g) or § 103 in view of the “possible” prior
invention thereof by Barton.
B. Abuse of discretion standard
Interlocutory orders regarding procedural matters are
reviewed at final hearing for abuse of discretion. 37 CFR
1.655(a). The burden of showing that an interlocutory order
should be modified is on the party attacking the order. 37 CFR
1.655(a). “An abuse of discretion occurs if the decision (1) is
clearly unreasonable, arbitrary, or fanciful; (2) is based on an
erroneous conclusion of law; (3) rests on clearly erroneous fact
findings; or (4) involves a record that contains no evidence on
which the Board could rationally base its decision.” Abrutyn v.
Giovanniello, 15 F.3d 1048, 1050–51, 29 USPQ2d 1615, 1617 (Fed.
Cir. 1994).
It is not an abuse of discretion for the Board to decline
consideration of arguments which are untimely presented. Credle
v. Bond, 25 F.3d 1566, 1572 n.14, 30 USPQ2d 1911, 1916 n.14 (Fed.
Cir. 1994).
C. Summary of the facts
Following the instructions of the Federal Circuit, the
interference was redeclared, naming Barton as a junior inventor,
in order to finalize the count before Monsanto elected Barton or
Fischhoff as the earliest inventor of the invention defined by
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