accorded Lee in the notice declaring interference. At the time the interference was declared, Lee
was accorded benefit of application 09/192,153 ('153 application), filed 12 November 1998, now
U.S. Patent 6,246,202, granted 12 June 2001 and application 08/416,558 ('558 application), filed
4 April 1995, now U.S. Patent 5,874,820, granted 23 February 1999.
Van Engelen argues that Lee is not entitled to the benefit of the earlier filing date of the
Lee '558 application, since there is no support for Lee claims 4-6. The '558 application
incorporates by reference, Lee application 08/221,375('375). Lee was not accorded priority
benefit of the '375 application at the time the interference was declared. We note that Lee has
moved to be accorded priority benefit of its '375 application and that motion is addressed infra
in connection with Lee preliminary motion 5.
Van Engelen argues that the '558 application ineffectively incorporates by reference the
'375 application, or alternatively incorporates only a specific portion of the '375 application that
fails to describe certain ones of the claimed features in Lee claims 4-6. Alternatively, van
Engelen argues that neither the '375 application nor the '558 application, standing alone, provide
written description support for Lee's claims.
A party moving to attack the benefit accorded an opponent bears the burden of proof to
demonstrate, as to the count, why the opponent should not be accorded the benefit of the filing
date of the earlier application. 37 CFR § 1.637(a) and 37 CFR § 1.637(g). Weil v. Fritz, 572
F.2d 856, 865-66 n. 16, 196 USPQ 600, 608 n. 16 (CCPA 1978); Hunt v. Treppschuh, 523 F.2d
1386, 1389, 187 USPQ 426, 429 (CCPA 1975). In order to be accorded benefit, the '558
application need only describe an enabling embodiment within the scope of the count, Thus, it is
not necessary that the '558 application provide written description support for Lee's claims 4-6.
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