Interference 103,781
designate certain species claims as not corresponding to generic
Count 2, a motion uncontested by Adang.
Moreover, we fail to comprehend why it was reasonable for
Adang to presume that a request to file additional motions in
response to the APJ’s express order inviting just such a request
“would clearly have been premature under the APJ’s rationale set
forth in the Order redeclaring the interference (Paper No. 148,
pages 30-32)” (AB 62-63, bridging para.). The reasonableness of
Adang’s presumption, i.e., that it could not file its motion for
judgment and discovery before Monsanto elected the first to
invent the invention of Count 2 as between Barton and Fischhoff,
vanished when the APJ ordered the parties to specify what
additional preliminary motions, if any, needed to be filed in the
newly declared interference with Barton as a party and new
Count 2 and to explain why any additional preliminary motions
specified and supporting evidence are necessary to, and should be
filed in, this interference.
Even if we were to assume that Adang’s untimely response
must be excused for good cause, Adang still has not explained why
the additional preliminary motion is justified by Barton’s
reinstatement as junior party to this interference, Count 2, or
Monsanto’s election of Fischhoff as first to invent the invention
of Count 2 as between Barton and Fischhoff. The APJ considered
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