Interference No. 104,843 Paper 51
Kundu v. Ragunathan Page 14
(creating a rebuttable presumption that the parties invented in the same order that they filed);
Brown v. Barbacid, 276 F.3d 1327, 1332, 61 USPQ2d 1236, 1238 (Fed. Cir. 2002).
Although the ultimate burden of proof stays with the junior party, the burden of going
forward on the question of suppression normally lies with the proponent of the issue. Young v.
Dworkin, 489 F.2d 1277, 1279, 180 USPQ 388, 390 (CCPA 1974). If, however, there is an
unreasonably long delay between reduction to practice and disclosure (to the public or the United
States Patent and Trademark Office [USPTO]) suppression may be inferred. Lutzker v. Plet,
843 F.2d 1364, 1367, 6 USPQ2d 1370, 1372 (Fed. Cir. 1988). In the present case, the
administrative patent judge administering the interference found the unexplained at least twenty
seven month delay to be unreasonably long and issued an order to show cause under Rule 617.
Hence, it is incumbent on Kundu to establish priority over Ragunathan’s effective filing date,
both as a result of the procedural inference of suppression and also as a consequence of its
ultimate burden on priority as junior party.
In meeting its burden of proof, it is the responsibility of each party to precisely identify
and clearly explain the evidence on which it relies. Dana Corp. v. American Axle & Mfg.,
279 F.3d 1372, 1377, 61 USPQ2d 1609, 1612 (Fed. Cir. 2002); Biotec Biologische
Naturverpackungen v. Biocorp., Inc., 249 F.3d 1341, 1353, 58 USPQ2d 1737, 1746 (Fed. Cir.
2001) (refusing to impose duty on fact-finder to search record for possible evidence).
2. Evidentiary standard
Since Kundu did not file its application until after Ragunathan had received its 065
patent, this case invokes Rule 657(c), which requires the junior party to establish priority by clear
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