Interference No. 103,303
evaluation as to what weight the evidence, if it is relied
upon by us, should be accorded.
INTERFERENCE-IN-FACT
We hold that an interference-in-fact exists.
The interference having been declared under 35 U.S.C.
§ 135(a), it is presumed that an interference-in-fact exists
and that each party's claims designated as corresponding to a
count define the same patentable invention as the count. 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(j).
The party filing a preliminary motion urging that an
interference-in-fact does not exist has the burden of proof on
the motion. Kubota v. Shiyuba, 999 F.2d 517, 27 USPQ2d 1418
(Fed. Cir. 1993). The party must show that its claims
corresponding to the count are directed to a separate
patentable invention from each of its opponent's claims
designated in the notice as corresponding to the count. Hsing
v. Myers, 2 USPQ2d 1861 (Bd. Pat. App. & Int. 1987).
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