Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 13
date, coupled with the intervening issuance of Ragunathan's patent, begs the question of whether
Kundu abandoned, suppressed, or concealed its invention. Since Rule 608 does not require an
applicant to answer that question, the issue can only be fully joined during an interference.
Holmwood v. Cherpeck, 2 USPQ2d 1942, 1944 (BPAI 1986).
Ordinarily, a junior party subject to a Rule 617 proceeding may not introduce additional
evidence absent a showing of good cause. Rule 617(b). The lack of a requirement in Rule 608 to
justify a delay in filing, however, provides the "good cause" to permit a junior party to provide an
additional showing addressing the reason for the delay (but not other issues). Holmwood,
2 USPQ2d at 1944. Abandonment does not appear to be the issue in this case, so the focus of the
proceeding has been on whether Kundu suppressed or concealed11 the invention. For the
purposes of a Rule 617 proceeding declaration testimony is ordinarily presumed to be true.
Basmadjian, 54 USPQ2d at 1624.
1. Burden of proof
Despite its name "Summary judgment against applicant", Rule 617 shares little in
common with a summary judgment under the Federal Rules of Civil Procedure. One particularly
significant difference is that the junior party applicant, the non-movant, has the burden of proof
to show why it is entitled to judgment on priority. Rule 617(a); Schendel v. Curtis, 83 F.3d
1399, 1402, 38 USPQ2d 1743, 1746 (Fed. Cir. 1996). In this sense, it is a logical extension of
the placement of the ultimate burden of proof for priority on the junior party. See Rule 657(a)
11 The case law cited and the arguments of record do not appear to draw any significant distinction between
suppression and concealment. For simplicity, this decision will speak of the issue as one of suppression.
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