Interference No. 103,379
Decision on Reconsideration
insufficient to prove diligence because "[n]one of these
documents have been introduced into evidence, let alone with
authenticating testimony by someone other than Dance.
Furthermore, the preparation of these documents is not
corroborated by Dennis or anyone else."
(Decision at 17.) Dance argues that
the sequence of acts listed in the Dance
Declaration, since they are nowhere rebutted, must
be taken as established for purposes of this
proceeding. Clearly, to the extent corroboration is
needed, the filing date of the Dance application is
corroborated. Since Seifert in no way challenged
the sufficiency of the assertions of the Dance
Declaration on any basis[,] the Board is asked to
recognize that diligence, to the extent it is
needed, has been established as not having been
objected to or otherwise disproved by Seifert.
[Request at 3.]
This argument places the burden of proof on the wrong party.
It is Dance, as the party seeking to establish a date of
invention prior to Seifert's filing date, who bears the burden
of proving diligence, 37 CFR § 1.657(a) and § 1.657(b), which
like conception must be corroborated. Price v. Symsek, 988
F.2d 1187, 1196, 26 USPQ2d 1031, 1038 (Fed. Cir. 1993).
Seifert was not required prior to filing his brief to identify
the perceived weaknesses in Dance's priority evidence, with
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