Interference 103,781
“possible” prior invention thereof by Barton. According to
Adang, its first attempt to file the motion (Paper No 47) was
denied as premature pending Barton’s reinstatement as a junior
party to this interference, motions necessitated thereby, and
finalization of the scope of the count. Adang has not suggested
that the APJ erred in denying its initial motion, i.e.,
Preliminary Motion No. 3 (Paper No. 47), for the reasons given in
the APJ’s decision thereon (Paper No. 148). According to Adang’s
story, however, a “Catch-22" situation, and concomitant abuse of
discretion by the APJ, arose because the APJ subsequently denied
(Paper No. 212) Adang’s request to refile the motion (Paper
No. 199). The request was denied for, inter alia, untimeliness
(Paper No. 212) following Barton reinstatement as junior party to
the interference (Paper No. 148) and Monsanto’s election
thereafter of Fischhoff as first to invent the subject matter of
the interference count as between Barton and Fischhoff (Paper
No. 182). In its brief at final hearing, Adang asks the Board to
consider how an APJ can have fairly denied its first motion
(Paper No. 47) as premature without Barton (Paper No. 148), and
then fairly denied Adang’s request to file a second motion or
renew its earlier motion (Paper No. 199) after Barton’s
reinstatement (Paper No. 148) because the request was untimely
(Paper No. 212).
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