Interference No. 103,534
prima facie establishes that the limitation in question lacks either express or inherent support in
the involved application. Behr v. Talbott, 27 USPQ2d 1401, 1407 (Bd. Pat. App. & Int. 1992). It
is considered that the same burden is present where the charge is lack of enablement or best
mode.
Not having submitted any evidence in support of its preliminary motions for
judgment, the motions are denied for lack of evidence.
Priority:
At page 16 of its reply brief, the junior party states that “Phillips has not raised
priority of invention as an issue because, given the deficiencies in Owen’s specification under
35 U.S.C. § 112, priority need not be resolved”. Whereas 1.) the junior party Phillips has chosen
not to contest priority of invention in this proceeding, 2.) Phillips has not established that the
application of Owen is not in compliance with 35 U.S.C. § 112, first paragraph, and 3.) the party
Owen enjoys senior party status, the party Owen is entitled to prevail herein as the prior inventor.
Judgment
Judgment as to the subject matter of count 1, the sole count, is awarded to R.
Calvin Owen, Jr., Robert A. Gallagher and Robert M. Burley, the senior party. On the present
record, the party Owen is entitled to a patent with claims 46-53. The party Phillips is not entitled
to its patent with claims 1-6, 8 and 9.
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