Interference No. 103,675
Significantly, Chen et al.'s brief fails to show a correspondence
between the examples from the earlier filed applications which they
seek to establish as embodiments within each of the counts and the
express limitations of each of the counts. Nevertheless, in an
abundance of caution, we shall undertake to decide Chen et al.'s
motions based on the merits of Chen et al.'s arguments to the extent
they are supported by adequate facts in the record.
THE MOTION FOR BENEFIT
A party moving for relief under 37 C.F.R. § 1.633 has the
burden of establishing it is entitled to the relief requested. Kubota
v. Shibuya, 999 F.2d 517, 520-21, 27 USPQ2d 1418, 1422 (Fed. Cir.
1993); 37 C.F.R. §1.637, first sentence. Although this interference
involves the junior party's issued patent, because the involved patent
issued from an application filed before the senior party's U.S.
application was filed but after the senior party's effective fling
date of December 9, 1992, the junior party's involved patent was
copending with the senior party's involved application and, therefore,
the burden of proof is by a preponderance of the evidence. See Bruning
v. Hirose, 161 F.3d 681, 686, 48 USPQ2d 1934, 1938 (Fed. Cir. 1998). A
preponderance of the evidence has been defined as a standard which
only requires the fact finder :
to believe that the existence of a fact is more probable
12
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: November 3, 2007