Patent Interference No. 103,892 Page 6
be accorded the benefit of the March 12, 1986, filing date of foreign priority application
DE 3608280.5. Davie (paper no. 25) opposes the motion. Grundmann (paper no. 28)
has filed a Reply. We subsequently dismiss the motion for reasons given infra.
37 C.F.R. §1.657(a) states: “A rebuttable presumption shall exist that, as to each
count, the inventors made their invention in the chronological order of their effective
filing dates. The burden of proof shall be upon a party who contends otherwise.” As the
junior party in this interference, Davie has the burden7 of proving an earlier date of
invention; that is, Davie has the initial burden of proof to establish a date of the invention
defined by Count 1 of this interference prior to Grundmann’s undisputed priority date of
June 26, 1986.
What Must Davie Show to Meet Its Burden of Proof of Establishing an Earlier Date of
Invention?
To meet its burden of proof of establishing a date of invention before June 26,
1986, Davie must show either that it:
9 first conceived the invention prior to June 26, 1986, and proceeded with
reasonable diligence from a time just prior to Grundmann entering the field
toward a reduction to practice, either actual or constructive, or
generally as an advocate for a party. Compare Ernst Haas Studio, Inc. v. Palm Press, Inc., 164 F.3d 110,
112, 49 USPQ2d 1377, 1379 (2d Cir. 1999).
7 We point out that that burden of establishing priority does not shift. The ultimate burden always remains
on the junior party. However, in evaluating whether the junior party has satisfied that burden, all the
evidence, including that offered by the senior party, must be considered. Brown v. Barbacid, 276 F.3d
1327, 61 USPQ2d 1236 (Fed. Cir. 2002).
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
Last modified: November 3, 2007