Interference No. 103,169
37 C.F.R. § 1.629(b) indicates that evidence which shows that an act alleged in the
preliminary statement occurred prior to the date alleged in the statement shall establish
only that the act occurred as early as the date alleged in the statement. Accordingly, the
earliest dates that Chenevey et al. could possibly establish are January 23, 1983, for
conception and October 3, 1983, for reduction to practice.
V.
Burden of Proof
It is well settled that where an interference is between a patent that issued on an
application that was copending with an interfering application, the applicable standard of
proof is preponderance of the evidence. Bosies v. Benedict, 27 F.3d at 541-542, 30
USPQ2d at 1864; see also Peeler v. Miller, 535 F.2d 647, 651 n.5, 190 USPQ 117, 120 n.
5 (CCPA 1976); Linkow v. Linkow, 517 F.2d 1370, 1373, 186 USPQ 223, 225 (CCPA
1975); Frilette v. Kimberlin, 412 F.2d 1390, 1391, 162 USPQ 148, 149 (CCPA 1969),
11
cert. denied, 396 U.S. 1002(1970). See also 37 C.F.R. § 1.657(b)(1995). Herein,
Chenevey et al., as the junior party, bears the burden of proof.
VI.
11 37 C.F.R. § 1.657(b), as now amended[1995], states that: ?[I]n an interference
involving copending applications or involving a patent and an application having an
effective filing date on or before the date the patent issued, a junior party shall have the
burden of establishing priority by a preponderance of the evidence.”
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