Interference No. 103,036
Kubota v. Shibuya, 999 F.2d 517, 519 n.2, 27 USPQ2d 1418, 1420
n.2 (Fed. Cir. 1993) ("The term 'burden of proof' as used herein,
and as we understand it to be used in § 1.633, means the burden
to establish the proposition at issue by a preponderance of the
evidence.") The burden upon the party Cataldi et al. is the same
as that upon an examiner who rejects a claim under 35 U.S.C.
§ 112, second paragraph, i.e., to establish that one of ordinary
skill in the pertinent art, when reading the claims in light of
the supporting specification, would not have been able to
ascertain with a reasonable degree of precision and particularity
the particular area set out and circumscribed by the claims. In
re Moore, 439 F.2d 1232, 1235, 169 USPQ 236, 238 (CCPA 1971). In
re Hammack, 427 F.2d 1378, 1382, 166 USPQ 204, 208 (CCPA 1970)
(The purpose of 35 U.S.C. § 112, second paragraph is to provide
those who would endeavor, in future enterprise, to approach the
area circumscribed by the claims of a patent, with the adequate
notice demanded by due process of law, so that they may more
readily and accurately determine the boundaries of protection
involved and evaluate the possibility of infringement and
dominance).
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