Interference 103,781
of Count 2 as between Barton and Fischhoff. Adang has not
explained the why of it.
In its brief, Adang states (AB 62, second full para.):
The APJ rejected Adang’s motion [(Paper No. 199)].
. . . [T]he APJ denied Adang’s request for leave to file a
belated preliminary motion, stating that Monsanto’s election
does not warrant untimely reconsideration of the Board’s
earlier denial of Adang’s Contingent Preliminary Motion 3.
(Paper No. 212, pages 4-5 & 11). The APJ also stated that
such issues could have been timely raised at the time the
interference was redeclared [(Paper No. 148)] adding Barton
into the interference (Paper No. 212, pages 6-11.)
Adang then argues that it was reasonable for Adang to presume
that (AB 62-63, bridging para.):
. . . reconsideration [requested] any time before Monsanto
had made its election . . . would clearly have been
premature under the APJ’s rationale set forth in the Order
redeclaring the interference (Paper No. 148, pages 30-32).
Having requested reconsideration immediately after the
election was filed cannot properly be deemed belated.
However, at the time Monsanto made its election, Barton had been
reinstated as a junior party to the interference. At the time
Monsanto made its election, the scope of Count 2 had been set in
the Decision and Order On Preliminary and Miscellaneous Motions
and Requests (Paper No. 148). At the time Monsanto made its
election, the Federal Circuit had decided the pending appeals of
the decisions in the Delaware I, Delaware II, and California
infringement proceedings. At the time Monsanto made its
election, Adang was aware of Fischhoff’s preliminary motion to
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