Dadgar v. Gill

When parties to an interference report that scheduling difficulties have prevented settlement discussions within the time set in the Notice Declaring Interference, and the report gives no effort made or date for the discussions, the Board may, in managing the administrative process, bar preliminary motions unless settlement discussions take place and the Board is notified of the results before a date set ahead of the preliminary motion deadline. Parties cannot let settlement talks make the interference open-ended or delay the times for action. No prior precedent directly addressed this issue; the decision cites none of the Board's own. It treats the interference as not conducted solely for the parties' convenience, because the Board has discretion to manage the process and the administration of justice. For the opposing party in an interference, settlement talks do not suspend the schedule, and preliminary motions are forfeited if the Board is not told the outcome of discussions by the set date. For the party holding the senior or junior position, an open-ended request to defer for business representatives' schedules will not be accepted and risks losing the right to file preliminary motions. The Board cited Rosemount, Inc. v. Beckman Instruments, Inc., 727 F.2d 1540, 1549-50, 221 USPQ 1, 10 (Fed. Cir. 1984), only with a "Compare" signal, as discussing a similar balance for district courts under the Federal Rules of Civil Procedure. It is not binding authority on this point. LEGAL TEST OR STANDARD: No multi-factor test. The Board relied on its discretion in managing the administrative process, the business of the Board and the administration of justice in a fair and even-handed manner, weighed against the parties' convenience. It asked whether the parties' paper showed what effort was made to meet and when discussions would occur, and whether the proceeding could become unacceptably open-ended. TRIGGERING FACTS: The parties filed a joint communication (Paper 24) saying meaningful settlement negotiations require business representatives, that scheduling difficulties prevented a meeting within the time frame in the Notice Declaring Interference (Paper 1), and that discussions would be held as soon as schedules permit. The paper did not say what effort was made or give a date. Preliminary motions were due 12 March 1999, and the Board set 8 March 1999 as the date for discussions and notice of results. KEY QUOTE: "Hence, the paper makes it clear that the proceedings in this interference may be unacceptably open-ended." (Paper 25, p. 2) PRIOR PRECEDENT AFFECTED: No prior precedential or informative decision is directly affected. PRACTICE TIP: Do not ask to postpone the interference schedule for settlement talks with a vague promise to meet when schedules permit. Hold the discussions and notify the Board of the results before the date the Board sets. Otherwise you risk losing the right to file preliminary motions.