Interference No. 103,029
of derivation could not have been avoided. Accordingly, we
grant both of the senior party Barnhouse’s motions to amend
the preliminary statement and we permit the correction of
Barnhouse’s preliminary statement to include the allegation of
derivation, in the interest of justice. The Barnhouse motions
to amend the preliminary statement to include an allegation of
derivation are GRANTED.
Senior Party Case for Derivation
Whether in senior party status or junior party
status, the burden of proof of party Barnhouse with respect to
derivation is by a preponderance of the evidence. Hedgewick
v. Akers, 497 F.2d 905, 908, 182 USPQ 167, 169 (CCPA 1974).
“While the
ultimate question of whether a patentee derived an invention
from another is one of fact, the determination of whether
there was a prior conception is a question of law, which is
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