Interference No. 104,403
concave lenses therein” from Mr. Rosenthal until March 10,
1995, or later (Rosenthal Record page 82).
OPINION
Magee was accorded the benefit of the filing date of the ‘055
application which was filed on April 13, 1994 and was accorded senior
party status on that basis. In order to be awarded priority in this
interference, Rosenthal must either prove an actual reduction to
practice prior to the filing date of the ‘055 patent application or prove
conception of the subject matter of the count before the filing date of
the ‘055 patent application coupled with reasonable diligence from a
time just prior to the filing date of the ‘055 patent application up to a
reduction to practice (constructive or actual) by Rosenthal. 35 U.S.C.
§ 102(g)(2000); Singh v. Brake, 317 F.3d 1334, 1340, 65 USPQ2d
1641, 1645 (Fed. Cir. 2003); Griffin v. Bertina, 285 F.3d 1029, 1032, 62
USPQ2d 1431, 1433 (Fed. Cir. 2002); Mahurkar v. C.R. Bard, Inc., 79
F.3d 1572, 1577, 38 USPQ2d 1288, 1290 (Fed. Cir. 1996).
As the junior party, Rosenthal bears the burden of proof on the
issue of priority. Bosies v. Benedict, 27 F.3d 539, 541, 30 USPQ2d
1862, 1863 (Fed. Cir. 1994).
“It is well settled that where an interference is between a patent
that issued on an application that was copending with an interfering
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