Interference No. 103,675
than its nonexistence before [he] may find in favor of the
party who has the burden to persuade the [judge] of the
fact's existence.
Boises v. Benedict, 27 F.3d 539, 541-42, 30 USPQ2d 1862, 1864 (Fed.
Cir. 1994), quoting from In re Winship, 397 U.S. 358, 371-72 (1970).
Contrary to Chen et al.'s statement at page 29 of their
motions brief regarding 35 U.S.C. § 120, benefit in an interference is
with respect to the counts not claims. Benefit with respect to 35
U.S.C. § 120 requires satisfaction of the statute with respect to the
full scope of the claims rather than a single embodiment within a
count. Thus, benefit for an earlier filed application with respect to
a count in interference where the count is to a genus of compounds or
embraces multiple compounds is established by showing at least one
embodiment (species) within the count in the earlier filed application
and which disclosed embodiment satisfies the requirements of the first
paragraph of 35 U.S.C. § 112. Hunt v. Treppschuh, 532 F.2d 1386, 1389,
187 USPQ 426, 429 (CCPA 1975);
Den Beste v. Martin, 252 F.2d 302, 304-05, 116 USPQ 584, 586 (CCPA
1958); Mori v. Costain, 214 USPQ 295, 297 (BPAI 1982). Accordingly,
for Chen et al.'s motions to be granted with respect to each count,
Chen must show by a preponderance of the evidence, an embodiment
within each of the counts which satisfies the statute for each of
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