Interference No. 102,572
explained as to content and date remain.
Cabilly et al. allege that the parties had a stipulation that in the event that verification
of information such as the dating of notebooks was necessary, the original would be
furnished. (Reply brief, page 9) Contrary thereto, the stipulation (Record, vi-ix) does not
reflect any agreement with respect to dates on the exhibits.
Cabilly et al. also allege that Boss et al. failed to cross-examine the witnesses.
However, we will draw no adverse inference from Boss et al.’s failure to cross-examine
because it is fundamental that after the junior party has made its case-in-chief that if a
senior party upon examination thereof is of the opinion that the record made by the junior
party is not sufficient to establish priority, there is no compulsion upon senior party to
present any evidence whatsoever. Senior party has the right to stand on its position that
junior party has failed to make his case. Teter v. Kearlby, 169 F.2d 808, 814, 79 USPQ
65, 70 (CCPA 1948); and Cf. Boises v. Benedict, 27 F.3d at 541-542, 30 USPQ2d at
1864 (Fed. Cir. 1994); citing Linkow, 517 F.2d at 1373, 186 USPQ at 225.
B. Essential Limitations of the Count
In the Cabilly et al. proofs, Cabilly et al. focus upon the production of an IgG
molecule containing the heavy (Gamma) chain and light chain of CEA.66-E3 antibody. In
order for Cabilly et al. to prove priority based upon an actual reduction to practice of the
process count, Cabilly et al. must prove by a preponderance of the evidence that they
carried out each step of the process and that the process actually results in the production
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