Barton et al or Fischhoff et al v. Adang et al. - Page 187




          Interference 103,781                                                        

          a junior party (Paper No. 148).  Adang’s shorthand version of the           
          events of record defies excuse.                                             
               Secondly, the APJ had ordered Adang to indicate what                   
          motions, for example a renewed motion under 37 CFR § 1.633(a) 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 possible prior invention              
          thereof by Barton, were required and to explain why they were               
          necessary.  Apparently, Adang belatedly came to think that it had           
          not adequately responded to the APJ’s order within the time                 
          period set.  However, Adang has never adequately explained why it           
          failed to do so.  This failure is yet another basis to deny the             
          request, for no “good cause” has been shown to excuse the lapse.            
               Adang’s Brief at Final Hearing suggests that a motion under            
          37 CFR § 1.633(a) 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 possible           
          prior invention thereof by Barton was not required before                   
          Monsanto elected Fischhoff as first to invent the subject matter            
          of Count 2 as between Barton and Fischhoff.  According to Adang,            
          the new or renewed motion and request were not appropriate before           
          Monsanto elected Fischhoff as first to invent the subject matter            


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