Interference No. 103,036
F.2d 1576, 229 USPQ 673 (Fed. Cir. 1986) and In re Amos, 953 F.2d
613, 21 USPQ2d 1271 (Fed. Cir. 1991), which he cannot harmonize.
Despite this lack of harmonization, counsel urges that his motion
should be granted. The motion is denied.
As the moving party, the party Cataldi et al. has the
burden of proof by a preponderance of the evidence on the motion.
Kubota v. Shibuya, 999 F.2d at 519, n.2, 27 USPQ2d at 1420, n.2.
The party Cataldi et al. has not sustained its burden since the
motion does not analyze each of the reissue claims 13 to 51
vis-à-vis each of the original patent claims 1 to 11 to
demonstrate that each reissue claim is not directed to the same
invention as the original patent claims. See 37 CFR § 1.637(a).
Rather, the party Cataldi et al. relies upon the party Burroughs
et al.'s silence as an implicit admission that reissue claims 13
to 51 are not drawn to the same invention as patent claims 1 to
11. We find no admission under the foregoing circumstance.
Notwithstanding the foregoing, we have nonetheless
reviewed the party Burroughs et al.'s reissue claims and agree
with the party Burroughs et al. that these claims are drawn to
the same invention as the invention defined by its original
claims 1 to 11. In other words, the party Burroughs et al. is
not claiming subject matter entirely different from anything
anywhere earlier claimed, but rather is seeking to obtain
broadened claims to subject matter claimed in its patent.
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