Interference 102,413 Page 17
Pitha v. Muller
of the experiment W-17. The following is a list of drugs30
said to have been solubilized in water with W-17 in aqueous
media and the respective pages from Dr. Czajkowska’s
laboratory notebook on which they appear:
Testosterone, C-160; Estradiol, C-162; Progesterone, C-163;
Testosterone, C-166; Estradiol, C-173; Progesterone, C-207;
Epichlorohydrin, C-170; Retinoic acid, C-174; Complex of
insulin and HPBCD, C-231; and Retinoic acid, C-250.31
E. DISCUSSION
As the junior party, Pitha has the burden of proof on the
issue of priority. 37 CFR § 1.657(b); Bosies v. Benedict, 27
F.3d 539, 541, 30 USPQ2d 1862, 1863 (Fed. Cir. 1994); “It is
well settled that where an interference is between a patent
that issued on an application that was copending with an
interfering application, the applicable standard of proof is
preponderance of the evidence.” Bosies, 27 F.3d at 541-42, 30
USPQ2d at 1864. Since the applications were copending, the
applicable standard of proof is preponderance of the evidence.
1. Actual Reduction to Practice
30PR pages 299, 300 and 301.
31PR page 299.
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