Interference No. 104,241
al.'s burden) with the requirements for what constitutes a
constructive reduction to practice. Suffice it to say that
Cupps et al. are the senior party in this interference because
their benefit application serves as a constructive reduction
to practice of the subject matter defined by the count. See
Kawai v. Metlesics, 480 F.2d at 886, 178 USPQ at 163.
Accordingly, for all the above reasons, the motion under
37 C.F.R. § 1.633(g) is DENIED. Because Jeon et al.'s motion
has been denied, we must now determine whether or not the
order to show cause was properly issued by the APJ.
THE ORDER TO SHOW CAUSE
As the party with the burden of persuasion under 37
C.F.R.
§ 1.608(b), Jeon et al. had the burden to establish that they
were prima facie entitled to judgment relative to Cupps et al.
In order to establish they were prima facie entitled to
judgment, Jeon et al. was required to prove at least so much
of their case as would entitle them to an award of priority
assuming that Cupps et al. relied solely on their filing date
and were not to rebut any of Jeon et al.'s case. See Hahn v.
Wong, 892 F.2d 1028, 1032, 13 USPQ2d 1313, 1317 (Fed. Cir
15
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