Interference No. 104,290
Levee Showing under 37 CFR § 1.131
With regard to the patentability of the LeVeen claims,
the interlocutory merits panel gave LeVeen the opportunity of
overcoming the filing date of Edwards by recourse to the provi
sions of 37 CFR § 1.131. The purpose of filing a § 131 affidavit
is not to demonstrate prior invention per se, but merely to
antedate the effective date of the reference. in re Eickmeyer,
602 F.2d 974, 978, 202 USPQ 655, 660 (CCPA 1979) citing In re
Moore, 444 F.2d 572, 170 USPQ 260 (1971). Although the test
for sufficiency of an affidavit under Rule 131(b) parallels
that for determining priority of invention in an interference
under 35 U.S.C. 102(g), it does not follow that Rule 131 practice
is controlled by interference law. To the contrary, "[t1he
parallel to interference practice found in Rule 131(b) should be
recognized as one of convenience rather than of necessity."
Moore at 580, 170 USPQ at 267. Thus, "the 'conception' and
'reduction to practice' which must be established under the rule
need not be the same as what is required in the 'interference'
sense of those terms." Id. Accordingly, LaVeen must show by a
preponderance of the evidence a mere reduction to practice of his
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