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). -15-Page: Previous 85 86 87 88 89 90 91 92 93 94 95 96 97 98 99 NextLast modified: November 3, 2007