Interference No. 101,981
superconductivity. By emphasizing the homogeneity of their
material, the junior parties would appear to be distinguishing
their species from other less desirable ones. However, the fact
that a species may perform better or even excel is not a
reasonable basis for narrowly construing the count. 19
We give the count Batlogg’s broad interpretation. Having resolved the threshold issue of
count interpretation, we now turn to the question of priority.
PRIORITY
In their cases for priority, Beyers and Qadri, as the junior parties, must establish that they
actually reduced to practice the
invention of the count before March 3, 1987, Batlogg’s filing
date, or that they first conceived the invention prior to that
date and proceeded with diligence from a time just prior to the opponent entering the field toward
a reduction to practice, either actual or constructive. Haskell v. Colebourne, 671 F.2d 1362,
1365, 213 USPQ 192, 194 (CCPA 1982). Junior parties have the burden of establishing priority
by a preponderance of the evidence. 37 C.F.R. § 1.657(b). Bosies v. Benedict,
19 We reiterate our earlier point that the count is unambiguous. It is not made more so by reading on
materials of varying degrees of homogeneity. “Broad language in a count is not ambiguous simply
because it is capable of being read on several embodiments.” Fontijn v. Okamoto, 518 F.610, 618,
186 USPQ 97, 104 (CCPA 1975).
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