Interference No. 104,745
BAI'S CASE-IN-CHIEF18 FOR PRIORITY
Because junior party Bai's involved application and the application that matured into
senior party Laiko's involved patent were copending, Bai's evidentiary burden on the issue of
priority is a proof by a preponderance of the evidence. 37 CFR § 1.657(b); Bosies v. Benedict,
27 F.3d 539, 541-42, 30 USPQ2d 1862, 1864 (Fed. Cir. 1994). Evidence satisfies this burden of
proof if it demonstrates that it is more likely than not that the alleged acts actually occurred. See
Bosies, 27 F.3d at 542, 30 USPQ2d at 1864 (the preponderance of the evidence standard requires
the finder of fact to believe that the existence of a fact is more probable than its nonexistence).
Bai's preliminary statement19 names Bai, Fischer, and Flanagan, all of the inventors
named in the application, as the inventors of the subject matter of the count. Bai asserts
conception no later than 19 December 1997 and actual reductions to practice on 23 December
1997 and 20 January 1998.
Bai's alleged 19 December 1997 conception
As explained in Kridl v. McCormick, 105 F.3d 1446, 1449-50, 41 USPQ2d 1686, 1689
(Fed. Cir. 1997):
Conception is the formation "in the mind of the inventor of a definite and
permanent idea of the complete and operative invention, as it is thereafter to be applied in
practice." Coleman v. Dines, 754 F.2d 353, 359, 224 USPQ 857, 862 (Fed. Cir. 1985)
(quoting Gunter v. Stream, 573 F.2d 77, 80, 197 USPQ 482, 484 (CCPA 1978))
18 A party's "case-in-chief" is defined in 37 CFR § 1.601(d) to mean "that portion of a party's
case where the party has the burden of going forward with evidence." A "case-in-rebuttal" is
"that portion of a party's case where the party presents evidence in rebuttal to the case-in-chief of
another party." 37 CFR § 1.601(e).
19 Paper No. 38.
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