Interference 103,781
set for such a request in the Decision and Order On Preliminary
and Miscellaneous Motions and Requests, mailed September 4, 2002
(Paper No. 148) had lapsed (Paper No. 199). The APJ explained
the denial of Adang’s new request as follows (Paper. No. 212,
pp. 10-11):
Finally, the decision to which Adang refers was
published 2001 (. . . [Paper No.] 199, p. 5). The Board
granted Adang ample opportunity to specify and explain why
the discovery it now seeks is necessary to this interference
in the Decision and Order On Preliminary and Miscellaneous
Motions and Requests, mailed September 4, 2002 (Paper
No. 148). Adang allowed that window of opportunity [to]
close.
Now, Adang’s belated request amounts to a motion
under 37 CFR § 1.635 to consider a new request to file yet
another preliminary motion under 37 CFR § 1.633(a) for
judgment that Fischhoff’s claims corresponding to the count
are unpatentable under 35 U.S.C. § 102(g) over nonelected
Junior Party Barton’s claims. 37 CFR § 1.645(b) reads:
Any paper belatedly filed will not be considered
except upon motion (§ 1.635) which shows good cause
why the paper was not timely filed. . . .
Adang has not shown good cause why its belated request was
not timely filed. Accordingly, Adang’s new request is
denied.
F. Discussion
Senior Party Adang’s Brief At Final Hearing (Paper No. 223,
pp. 60-64) tells a story of Adang’s “Catch-22" efforts to file
preliminary motions for discovery and judgment that Fischhoff’s
claims designated as corresponding to the interference count are
unpatentable under 35 U.S.C. § 102(g)/103 in view of the
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