Interference No. 102,668
was not addressed in Cavanagh's opening brief, which argued
that McMahon's evidence fails to satisfy this requirement but
fails to explain why Cavanagh's evidence does. Cavanagh
argues (Reply Br. at 3-4) that he was not required to address
this point in his opening brief because (1) the examiner, by
forwarding the Cavanagh application and the McMahon patent to
the Board for declaration of the interference, necessarily
determined that the § 1.608(b) affidavits prima facie
demonstrate prior invention in this country and (2) the APJ,
by declaring the interference without concurrently issuing a
§ 1.617(a) show cause order challenging the sufficiency of the
§ 1.608(b) affidavits, likewise necessarily determined that
they establish a prima facie case of prior invention in this
country. However, neither of these interlocutory decisions by
the examiner and the APJ is binding on this panel.
Furthermore, whereas they concern compliance with the "prima
facie" standard of § 1.608(b), the issue before the Board at
this hearing is whether Cavanagh priority evidence satisfies
the higher, preponderance of the evidence standard under §
1.657(a). Compare Kahl v. Scoville, 609 F.2d 991, 995,
203 USPQ 652, 655 (CCPA 1979) (with respect to affidavits
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