Interference 103,579
(37 CFR § 1.633(b)).
“A party filing a motion has the burden of proof to show
that it is entitled to the relief sought in the motion.” 37 CFR
§ 1.637(a). In this case, to be entitled to the relief Visser
seeks, i.e., a conclusion that there is no interference-in-fact
between the inventions to which Hofvander’s and Visser’s claims
designated as corresponding to the count Visser’s and Hofvander’s
are directed, Visser must establish by a preponderance of the
evidence of record that no claim in its involved application
is directed to the same patentable invention as a claim in
Hofvander’s involved application. See 37 CFR §§ 1.601(i) and (j)
below (underlining added):
(i) An interference is a proceeding instituted
in the Patent and Trademark Office before the Board to
determine any question of patentability and priority
of invention between two or more parties claiming the
same patentable invention.
(j) An interference-in-fact exists when at least
one claim of a party that is designated to correspond
to a count and at least one claim of an opponent that
is designated to correspond to the count define the
same patentable invention.
37 CFR § 1.601(n) explains the meaning of “same patentable
invention” and “separate patentable invention” as follows:
Invention “A” is the same patentable invention
as an invention “B” when invention “A” is the same as
(35 U.S.C. 102) or is obvious (35 U.S.C. 103) in view
of invention “B” assuming invention “B” is prior art
with respect to invention “A”. Invention “A” is a
separate patentable invention with respect to invention
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Last modified: November 3, 2007