Interference No. 103,322
final hearing is priority of invention under 35 U.S.C. §
102(g).
Burden of Proof
The junior party application has been accorded a
benefit date of October 17, 1990. The senior party’s
effective filing date is May 25, 1990, and the senior party
was granted the
involved patent on November 26, 1990. Thus, the benefit date
accorded the junior party was during the pendency of the
senior
party’s application. Accordingly, for the junior party to
prevail in a priority contest, the junior party must prove
priority of invention by a preponderance of the evidence. See
Peeler v. Miller, 535 F.2d 647, 651 n.5, 190 USPQ 117, 120 n.5
(CCPA 1976). Accord Bosies v. Benedict, 27 F.3d 539, 541-42,
30 USPQ2d 1862, 1864 (Fed. Cir. 1994). Cf. Price v. Symsek,
988 F.2d 1187, 1194, 26 USPQ 1031, 1036 (Fed. Cir. 1993).
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