Interference No. 104,241
would become the junior party. As correctly noted by Jeon et
al., if Cupps et al. becomes the junior party then no showing
by Jeon et al. under 37 C.F.R. § 1.608(b) would have been
necessary to go forward in this interference. Accordingly, we
shall first determine if Jeon et al.'s motion should be
granted.
A party bringing a preliminary motion in an interference
bears the burden of establishing that the party is entitled to
the relief sought in the motion. Kubota v. Shibuya, 999 F.2d
517, 520-21, 27 USPQ2d 1418, 1422 (Fed. Cir. 1993); 37 C.F.R.
§ 1.637(a), first sentence. Pursuant to 37 C.F.R. § 1.637(g),
the motion "shall explain, as to each count, why an opponent
should not be accorded the benefit of the filing date of the
earlier application."
According to Jeon et al.'s motion, Cupps et al. should
not have been accorded benefit of their earlier filed U.S.
application with respect to the count in this interference.4
Jeon et al. observes that the count recites that R' may be a
cyano (-C=N) group and the description of "cyano" substituents
in the disclosure of Cupps et al.'s involved application was
4
A copy of the count is attached in the appendix to this decision.
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