Interference No. 103,036
such error as is encompassed by 35 U.S.C. § 251. To the extent
that motion no. 3 raises the same grounds for unpatentability as
raised by the party Cataldi et al.’s motion no. 24, motion no. 3
is denied for the reasons set forth in the Final Decision (Paper
No. 802) with respect to the party Cataldi et al.
To the extent that motion no. 3 urges that the party
Burroughs et al.’s claims are unpatentable as drawn to subject
matter which was abandoned, dedicated, or disclaimed, the motion
is denied. As the moving party, the party Wang et al. has the
burden of proof by a preponderance of the evidence on the motion.
Kubota v. Shibuya, 999 F.2d 517, 519, n.2, 27 USPQ2d 1418, 1420,
n.2 (Fed. Cir. 1993). The party Wang et al. has not sustained
its burden of proof since it has not analyzed each of the reissue
claims vis-à-vis each claim canceled during ex parte prosecution
of the party Burroughs et al.’s involved patent. Nonetheless we
have reviewed the claims canceled during ex parte prosecution and
we are not persuaded that the party Burroughs et al. has
attempted in its reissue application to recapture subject matter
canceled during the original prosecution of its patent. We agree
with the party Burroughs et al. that its reissue application
contains claims, which are narrower or materially different from
the canceled claims.
For the foregoing reasons, motion no. 3 is denied.
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