order to address each count in its motion. No such request was made. Instead, Herman
impermissibly incorporates arguments from other sources into its brief
Herman has failed to follow certain procedures as outlined above, and as such, Herman
second substitute preliminary motion I is dismissed. Alternatively, we deny Herman second
substitute preliminary motion I for the following reasons.
Inventorshi
An interference may be declared to resolve an inventorship dispute between an applicant
and patentee. Chou v. University of Chicago 254 F.3d 1347,1358 n.2, 59 USPQ2d 1257, 1262
n.2 (Fed. Cir. 2001)(a means for a putative inventor to assert inventorship rights is to file a patent
application and seek to have the PTO declare an interference in order to establish inventorship).
Herman must demonstrate by a preponderance of the evidence that the inventorship listed
on the Bames patent is incorrect. The burden of showing something by a preponderance of the
evidence requires the trier of fact to believe that the existence of a fact is more probable than its
nonexistence before the trier of fact may find in favor of the party who carries the burden.
Concrete Pipe & Products of California, Inc. v. Construction Laborers Pension Trust for
Southern Califon-tia, 508 U.S. 602, 622,113, S.Ct. 2264, 2279 (1993).
Although not binding precedent of the Trial Section, Ellsworth v. Moore, 61 USPQ2d
1499 (Bd. Pat. App. & Int. 2001) provides guidance. There, Ellsworth claimed that he was the
sole inventor of the claims in the Ellsworth/Moore patent. Ellsworth filed an application,
identical to the patent with the hopes of provoking an interference. An interference was declared
with counts 1-15 ; those counts being identical to the Ellsworth/Moore patent claims and the
Ellsworth application claims.
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