Interference No. 102,622
Oates, as the junior party whose application was
copending with Rivetti et al.'s U.S. application and which
application matured to Oates' involved U.S. patent, bears the
burden of proving her case for priority by a preponderance of
the evidence. Morgan v. Hirsch, 728 F.2d 1449, 221 USPQ 193
(Fed. Cir. 1984); Peeler v. Miller, 535 F.2d 647, 190 USPQ 117
(CCPA 1976).
In order to be awarded priority in this
interference, Oates must prove an actual reduction to practice
prior to March 4, 1988, Rivetti et al.'s effective filing
date. Alternatively, Oates could prevail by proving a
conception of the subject matter of the count before Rivetti
et al.'s effective filing date of March 4, 1988, coupled with
reasonable diligence just prior to March 4, 1988, up to a
reduction to practice (constructive or actual) by Oates.
Jepson v. Egly, 231 F.2d 947, 109 USPQ 354 (CCPA 1956); Hull
v. Davenport, 24 CCPA (Patents) 1116, 90 F.2d 103, 33 USPQ
506; Wilson v. Sherts, 81 F.2d 755, 28 USPQ 379 (CCPA 1936).
THE PATENTABILITY OF OATES' CLAIMS
During the preliminary motions phase of this
proceeding, Rivetti et al. moved, inter alia, for judgment
against Oates in two, separate motions filed under 37 C.F.R.
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