Interference No. 104,067
hearing.' Junior party Kramp took testimony and filed a record
and a brief, but waived its opportunity to appear, through
counsel, at final hearing for oral argument. See Paper No. 30.
Issues
Kramp raises the issues of priority of invention and
derivation in his brief at final hearing. See Brief, page 5.
Junior party Kramy's case for oriority
1.
As the junior party in an interference between co-pending
applications, junior party Kramp bears the burden of proving
priority by a preponderance of the evidence. Cooper v. Goldfarb,
154 F.3d 1321, 1326, 47 USPQ2d 1896, 1900 (Fed. Cir. 1998); see
also Bosies v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d 1862,
1864 (Fed. Cir. 1994).
In his brief, Kramp points out that his evidence of prior
invention is "incontroverted." See Brief, page 8; see also
Trzyna affidavit dated January 28, 2000, paragraph 18 ("This
Interference is uncontested."). However, the senior party's
failure to file a brief at final hearing does not relieve the
6A time was also set for senior party Bishop to file a brief
at final hearing. See Paper No. 15. However, the senior party
did riot file a brief. See Paper Nos. 18 and 19; Service bv
Publication under 37 CFR ý 1.646, 1217 Off. Gaz. Pat. & Trademark
Office 154 (Dec. 29, 1998).
5
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