Interference No. 1050
17. The parties have stipulated that the level of ordinary skill in the art with
respect to the subject matter of the count is represented by that comparable to an A.S. or
B.S. degree in mechanical engineering, two years of manufacturing work experience, and
two years of work experience in actually designing such a tool; or no college degree, five
years of manufacturing work experience, and three to four years of work experience in
actually designing such a tool. (Paper 25, paragraph 14; see also Stipulation of Level of
Skill in the Art, filed June 16, 2003).
Discussion
37 C.F.R. §1.637(a) provides that the party filing the motion has the burden of
proof to show that it is entitled to the relief sought in the motion. Consequently, party
Tarpill bears the burden of proof That burden is a preponderance of the evidence.
Bruning v. Hirose, 161 F.3d 681, 686, 48 USPQ2d 1934, 1937-38 (Fed. Cir. 1998).
1. The Parties' Positions on Anticipation by Nilsson
Tarpill urges that claim 1, when properly interpreted, would result in the claimed
subject matter of claim I of Bourbeau's '119 patent being definitive of the disclosure of
Nilsson's base portion pair. (Tarpill Preliminary Motion 1, Paper 25, page 9, last
paragraph). The focus of this argument is on the cable retaining means recited in claim
1. This cable retaining means is described and claimed as "including a pair of cable
retaining members having opposing arcuate jaws supported for movement away from
each other and to a cable receiving position ... and toward each other and to a cable
retaining position" (Bourbeau, column 6, lines 1-6). Tarpill interprets the claim
language as requiring only relative movement toward and away from each other (Tarpill
Reply 1, Paper 41, page 6, lines 11-12).
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