stated whether his case for priority is founded on an actual reduction to practice prior to
the '700 patent filing date or an earlier conception than Powell's coupled with reasonable
diligence from a time just prior to the Powell filing date up to a reduction to practice. As
such, we will examine the evidence as it relates to conception and reduction to practice
in 1994, reduction to practice in 190-6 and reduction to practice in 1997.
A. The burden and standard of proo
As the junior party, Bernardy bares the burden of proof on the issue of priority.
Bosies v. Benedict, 27 F.3d 539, 541, 30 USPQ2d 1862, 1863 (Fed. Cir. 1994); Oka v.
Youssefveh, 849 F.2d 581, 584, 7 USPQ2d 1169, 1172 (Fed. Cir. 1988). "It is well
settled that where an interference is between a patent that issued on an application that
was copencling with an interfering 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);
Frilette v. Kimberlin, 412 F.2d 1390, 1391, 162 USPQ 148, 149 (CCPA 1969), cert.
denied, 396 U.S. 1002 (1970).
The '700 patent was filed on November 11, 1997 and issued on March 2, 1999.
Bernardy's involved application was filed on March 2, 1998. Therefore, Bernardy's
application was copencling with Powell's application. Accordingly, the relevant standard
in this case is preponderance of the evidence. Something is established by a
1.preponderance of the evidence" when the existence of a fact is more probable than its
nonexistence. Concrete Pipe & California, Inc. v. Construction Laborers Pension Trust
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