Interference 103,781
recently retained the services, and thereafter followed the
advice, of new counsel (Paper No. 147).
Monsanto subsequently filed an election pursuant to 37 CFR
§ 1.602(a) designating “Junior Party Fischhoff et al. as first to
invent, vis-a-vis the Junior Party Barton et al., the subject
matter defined by Count 2" (Paper No. 182). In the same paper,
Monsanto stated its intent not to submit “any further documents
in this interference on behalf of the Junior Party Barton” (Paper
No. 182). Adang thereafter belatedly asked for permission to:
renew its previously filed preliminary motion under 37 CFR
§ 1.633(a) and request for discovery (Paper No. 47); file a new
preliminary motion under 37 CFR § 1.633(a) and request for
discovery; or 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 35 U.S.C. § 102(g)/103 in view of the
“possible” prior invention thereof by Barton (Paper No. 199).
The APJ denied Adang’s new request because: (1) the request had
not been timely filed; and (2) the request did not adequately
explain the basis for the motion and request for discovery (Paper
No. 212). The record does not support Adang’s story of abuse of
discretion.
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