Interference 104,746 Paper 123
Stice v. Campbell
bears the burden of proving, by a preponderance of the evidence,
a prima facie case that it was the prior inventor. The party
filing a motion has the burden of proof to establish that it is
entitled to the requested relief. 37 CFR § 41.121(b) (2004);
Velander v. Garner, 348 F.3d 1359, 1369–70, 68 USPQ2d 1769, 1777
(Fed. Cir. 2003). As a consequence, if the junior party fails to
make out a prima facie case that it was the prior inventor, the
senior party is awarded judgment by default.
A party who was not the first to file an application for
patent of the interfering invention may nonetheless be adjudged
the first inventor if it proves that it was the first to conceive
of an embodiment of the interfering invention, and that it worked
diligently to reduce an embodiment of the interfering invention
to practice from a time before the senior party conceived of its
invention until the junior party reduced its invention to
practice. "Priority and its constituent issues of conception and
reduction to practice are questions of law predicated on
subsidiary factual findings." Eaton v. Evans, 204 F.3d 1094,
1097, 53 USPQ2d 1696, 1698 (Fed. Cir. 2000).
Conception
Conception is the formation "in the mind of the inventor of
a definite and permanent idea of the complete and operative
prejudiced due to a reliance on the old rules, the new rules shall be applied.
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