Interference No. 103,141
necessary that count E be added since it is neutral to the
various features of Sawada’s application and is necessary for
Sawada to be able to rely on its best proofs.
Inasmuch as count E is admitted to encompass two
species of the invention, viz., the cross-section reduction
with subsequent sintering species, and the sintering with
simultaneous
or subsequent cross-section reduction species, our analysis
with
respect to the addition of count A, supra, is apropos here.
As we stated, for Sawada to add a generic count to the
interference, Sawada has the burden of establishing, by a
preponderance of the evidence, that the species encompassed in
the genus are the same patentable invention. Since Sawada has
not satisfied this burden, this fact alone is enough for us to
independently decide that count E cannot be properly added to
the interference.
But there’s more. Judge Smith’s attention was drawn
to the oxide powder/oxide paste species issue. Judge Smith
28
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