Interference 102,760
alone, conceived of the claimed "therapeutically effective
amount" of buspirone prior to April 1986.
As the moving party, Rapoport bears the burden of
establishing improper inventorship by clear and convincing
evidence. Hess v. Advanced Cardiovascular Sys., Inc., 106
F.3d 976, 980, 41 USPQ2d 1782, 1785 (Fed. Cir. 1997) (stating
that
" ‘[t]he burden of showing misjoinder or nonjoinder of
inventors is a heavy one and must be proved by clear and
convincing evidence' " (quoting Garrett Corp. v. United
States, 422 F.2d 874, 880, 164 USPQ 521, 526 (Ct. Cl. 1970))).
Rapoport appears to equate Dement's conception of an
embodiment within the scope of the count prior to April 1986
with inventorship of the claimed invention under 35 U.S.C. §
116. However, being the first to conceive an embodiment
within the scope of the count on a particular date is not the
same as conceiving the full scope of each claim in the
application as of its date of original presentation.
Therefore, the fact that Dement was the first to conceive an
embodiment within the scope of the count at some earlier date
does not establish inventorship under 35 U.S.C. § 116 of each
44
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