Patent Interference No. 103,892 Page 7
9 actually reduced to practice the invention before June 26, 1986.
35 U.S.C. § 102(g). Haskell v. Colebourne, 671 F.2d 1362, 1365, 213 USPQ 192, 194
(CCPA 1982).
The standard of proof is one of preponderance of the evidence. 37 CFR
§ 1.657(b). Where “the burden is … one of preponderance of the evidence, then
appellant’s allegations of fact need be supported only by a preponderance of the
evidence,” Paivinen v. Sands, 339 F.2d 217, 222, 144 USPQ 1, 6 (CCPA 1964).
“[A] preponderance of the evidence … standard … only requires the fact
finder ‘to believe that the existence of a fact is more probable 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.’ [citing In re Winship, 397 U.S. 358, 371-72 (1970)].”
Bosies v. Benedict, 27 F.3d 539, 542, 30 USPQ2d 1862, 1864 (Fed. Cir. 1994).8
In speaking of the “invention,” we refer to the interfering subject matter defined by
the count; here that is Count 1. See supra. 37 CFR §1.601(f). Count 1 defines the
interfering subject matter as being an isolated DNA encoding human factor XIII. Human
factor XIII is a plasma protein involved in blood coagulation. Factor XIII has two forms:
factors XIIIa and XIIIb. The parties acknowledge these forms (see Davie brief, p. 1, at
8 Compare with the definition given in 5 CFR § 1201.56(c) [revised January 1, 2000] for the
preponderance of the evidence standard in administrative proceedings under the Merit Protection
Systems Board [cited in Jackson v. Veterans Admin., 768 F.2d 1325, 1329 (Fed. Cir. 1985)]:
Preponderance of the evidence. The degree of relevant evidence that a reasonable person,
considering the record as a whole, would accept as sufficient to find that a contested fact is more
likely to be true than untrue.
See also St. Paul Fire & Marine Insurance Co. v. United States, 6 F.3d 763, 769 (Fed. Cir. 1993) which
states that the “’preponderance of the evidence’ formulation is the general burden assigned in civil cases
for factual matters” and defines “preponderance of the evidence in civil actions to mean ‘the greater
weight of evidence, evidence which is more convincing than the evidence which is offered in opposition to
it’ [quoting Hale v. Dept. of Transportation, 772 F.2d 882, 885 (Fed. Cir. 1985)].”
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