Interference No. 103,146
evidence. Furthermore, since the on sale bar runs to6
materiality under the inequitable conduct test, the proper
burden
in this instance would certainly be the clear and convincing
standard of proof. Barker has not shown by clear and
convincing evidence that the latex disc embodiment was offered
for sale by Shore in his field visits of December 1980.
Inasmuch as we have determined that the assignee of
the senior party did not offer for sale the latex disc
embodiment in December 1980, we necessarily find that
information respecting the field visits lacks the materiality
necessary to establish an instance of inequitable conduct on
the part of the senior party. Accordingly, Barker’s motion for
judgment under 37 CFR § 1.633(a) based on the ground of
inequitable conduct, deferred to final hearing, is hereby
DENIED.
6If the on sale bar were concerned with anticipation of
the latex disk embodiment, then the burden of proof would be a
mere preponderance of the evidence to render claims of the
latex disk embodiment unpatentable. Where, as here, the issue
is the unpatentability or unenforceability of a separate
embodiment, not offered for sale, by inequitable conduct or
“taint” as the junior party argues, the proper burden is clear
and convincing evidence.
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