Interference No. 104,403
application, the applicable standard of proof is preponderance of the
evidence.” Bosies v. Benedict, 27 F.3d at 541-42, 30 USPQ2d at
1864, see also Peeler v. Miller, 535 F.2d 647, 651 n.5, 190 USPQ 117,
120 n.5 (CCPA 1976); Linkow v. Linkow, 517 F.2d 1370, 1373, 186
USPQ 223, 225 (CCPA 1975).
The ‘055 patent application was filed on April 13, 1994, and the
Magee patent was issued on July 1, 1997 and the ‘226 patent
application was filed on January 18, 1995. Therefore, Rosenthal’s
patent application was copending with Magee’s patent application.
Accordingly, the relevant standard in this case is preponderance of the
evidence. Something is established by a “preponderance of the
evidence” when the existence of a fact is more probable than its
nonexistence. Concrete Pipe & Prods. v. Construction Laborers
Pension Trust, 508 U.S. 602, 622 (1993). As such, the junior party
must prove that it is more probable than not that he was the first to
reduce the invention to practice prior to the filing date of the ‘055
patent application, or was the first to conceive the invention and
utilized diligence from a time just prior to the filing date of the ‘055
patent application to a later reduction to practice.
The subject matter of the count is an optical lens system
comprising a transparent sheet having a first and second surface. The
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