are notorious, and to minimize both, where possible,
would appear to be the laudable purpose of these rules.
Kistler v. Weber, 412 F.2d at 285, 162 USPQ at 218-219
(CCPA 1969).
Thus, Rule 608(b) was designed primarily to protect the
patentee.
Sever’s burden of proof
The appropriate evidentiary standard to be applied in
determining whether an applicant has met its prima facie burden,
where the applicant's effective filing date is after the issue
date of the patent, is by the clear and convincing standard.
Basmadjian v. Landry, 54 USPQ2d 1617, 1624 (Bd. Pat. App. & Int.
1997). 37 CFR § 1.657(b). Thus, in response to the order to
show cause, Sever must demonstrate by clear and convincing
evidence that it is prima facie entitled to a patent vis-a-vis
Glickman.
Sever’s response to the Order to Show Cause
Sever concedes that priority is not at issue in this
proceeding (Paper 20 at 9). The sole issue, Sever argues, is one
of fraud/derivation. As the junior party, the burden is upon
Sever to demonstrate with sufficient evidence that Glickman
derived the invention from Sever. Until that is done, there is
no occasion to address the issue of fraud.
Sever presents no additional evidence in support of its
response to the Order to Show Cause. Instead, Sever presents
unsupported allegations made by Sever’s attorney. At the outset,
7
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