Interference No. 103,141
When an interference is declared, certain rebuttable
presumptions are created that govern the burden of proof
and/or the burden of persuasion with respect to motions under
37 CFR
§ 1.633 filed in the interference. See, for example, Orikasa
v.
Oonishi, 10 USPQ2d 1996, 2004 (Comm’r Pats. 1989); Id., n.17.
In declaring this interference with a single count (count 1),
there was created the clear presumption, on the record, that
the cross-section reduction with subsequent sintering species,
and the sintering with simultaneous or subsequent cross-
section reduction species were separate species that were not
the same patentable invention. Thus, for Sawada to be
permitted to add a count with a generic limitation regarding
these two species, Sawada must show that these two species are
the same patentable invention. This is part of Sawada’s burden
under 37 CFR § 1.637(a). The burden was on Sawada, and Sawada
did not sustain this burden.
Note that Sawada includes an analysis showing that
the orifice-free cladding and the cladding with orifices are
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