Ex Parte BISHOP - Page 5





         Interference No. 104,067                                                    


         hearing.' Junior party Kramp took testimony and filed a record              
         and a brief, but waived its opportunity to appear, through                  
         counsel, at final hearing for oral argument. See Paper No. 30.              
                                       Issues                                        
               Kramp raises the issues of priority of invention and                  
         derivation in his brief at final hearing. See Brief, page 5.                
                       Junior party Kramy's case for oriority                        
                                         1.                                          
              As the junior party in an interference between co-pending              
         applications, junior party Kramp bears the burden of proving                
         priority by a preponderance of the evidence. Cooper v. Goldfarb,            
         154 F.3d 1321, 1326, 47 USPQ2d 1896, 1900 (Fed. Cir. 1998); see             
         also Bosies v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d 1862,               
         1864 (Fed. Cir. 1994).                                                      
               In his brief, Kramp points out that his evidence of prior             
         invention is "incontroverted." See Brief, page 8; see also                  
         Trzyna affidavit dated January 28, 2000, paragraph 18 ("This                
         Interference is uncontested."). However, the senior party's                 
         failure to file a brief at final hearing does not relieve the               


              6A time was also set for senior party Bishop to file a brief           
         at final hearing. See Paper No. 15. However, the senior party               
         did riot file a brief. See Paper Nos. 18 and 19; Service bv                 
         Publication under 37 CFR ý 1.646, 1217 Off. Gaz. Pat. & Trademark           
         Office 154 (Dec. 29, 1998).                                                 
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