Interference No. 105,125
Chaffee v. Skulnick
There also is no testimony from any corroborating witness who had seen the design of any
prototype being packaged for shipment from the junior party to the senior party. It is altogether
uncertain just what was shipped from the j unior party to the senior party, if anything, and when.
Based on the evidence originally submitted, Chaffee failed to demonstrate prima facie
entitlement to priority, not even under the more lenient standard of proof by a preponderance of
the evidence. Note that Chaffee's applicable burden of proof in this case under 37 CFR
§ 1.657(c) is by the more stringent standard of clear and convincing evidence.
No Good Cause for Accepting Additional Evidence
Only in very limited circumstances may additional evidence be submitted. Note 37 CFR
§ 1.617(b) which provides that "[a]dditional evidence shall not be presented by the applicant or
considered by the Board unless the applicant shows good cause why any additional evidence was
not initially presented with the evidence filed under § 1.608(b)." For a discussion of the meaning
of "good cause" one should refe r, inter alia, to:
I . Notice of Final Rule, Patent Interference Proceedings, 49 Fed. Reg.
48416, 48423 (Dec. 12, 1984):
The "good cause" showing required by § 1.617(b) imposes a stricter standard than
was required under the prior rules. The stricter standard is necessary to encourage
applicants copying claims from a patent to better prepare their initial showings
under § 1.608(b). Under current practice, the Board of Patent Interferences has
found that substantial time is lost in issuing orders to show cause based on an
inadequate initial showing only to have an adequate showing made with the
response to the order to show cause. Under the "good cause" standard, ignorance
by a party or counsel of the provisions of the rules or the substantive requirements
of the law would not constitute good cause.
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