Interference No. 103,208
Hoshino et al. v. Tanaka
The APJ denied Hoshino’s motion (Paper No. 14) to add
proposed new counts 2, 3, and 4. That decision is presumed
to have been correct and the burden of showing an abuse of
discretion is upon the party attacking the order. 37 CFR
§ 1.655(a). An abuse of discretion occurs if the decision
"(1) is clearly unreasonable, arbitrary, or fanciful; (2) is
based on an erroneous conclusion of law; (3) rests on clearly
erroneous fact findings; or (4) involves a record that
contains no evidence on which the Board could rationally base
its decision." Abrutyn v. Giovanniello, 15 F.3d 1048, 1050-
51, 29 USPQ2d 1615, 1617 (Fed. Cir. 1994).
Before the APJ, a moving party bears the burden of proof
that it is entitled to the relief sought. Kubota v. Shibuya,
999 F.2d 517, 520, 27 USPQ2d 1418, 1421 (Fed. Cir. 1993);
Patent
Interference Practice Burden of Proof - Final Rule, 58 Fed.
Reg. 49432, 1155 O.G. 65, 67 (October 19, 1993). Case v. CPC
Int’l, Inc., 730 F.2d 745, 750, 221 USPQ 196, 200 (Fed. Cir.),
cert. denied, 105 S.Ct. 223, 224 USPQ 736 (1984).
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