Interference No. 103,197
Because Buschmann’s involved claims are not patent
claims, Mannheimer’s burden of proof with respect to proving
unpatentability is a preponderance of the evidence. See
Bruning v. Hirose, 161 F.3d 681, , 48 USPQ2d 1934, 1938(Fed.
Cir.
1998)("[T]his court holds that, during an interference
involving a patent issued from an application that was
copending with the interfering application, the appropriate
standard of proof for validity challenges is the preponderance
of the evidence standard.").
The first matter to consider is, of course, claim
construction. As explained in In re Morris, 127 F.3d 1048,
1054, 44 USPQ2d 1023, 1027 (Fed. Cir. 1997), "the PTO applies
to the verbiage of the proposed claims the broadest reasonable
meaning of the words in their ordinary usage as they would be
understood by one of ordinary skill in the art, taking into
account whatever enlightenment by way of definitions or
otherwise that may be afforded by the written description
contained in the applicant's specification." See also In re
Zletz, 893 F.2d 319, 321, 13 USPQ2d 1320, 1321-22 (Fed. Cir.
1989):
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