37 CFR 41.207(b)(2) — Presumptions

37 CFR 41.207(b)(2) — Presumptions.

(2) Evidentiary standard. Priority may be proved by a preponderance of the evidence except a party must prove priority by clear and convincing evidence if the date of its earliest constructive reduction to practice is after the issue date of an involved patent or the publication date under 35 U.S.C. 122(b) of an involved application or patent.

(2) A claim corresponds to a count if the subject matter of the count, treated as prior art to the claim, would have anticipated or rendered obvious the subject matter of the claim.

(c) Cross-applicability of prior art. When a motion for judgment of unpatentability against an opponent’s claim on the basis of prior art is granted, each of the movant’s claims corresponding to the same count as the opponent’s claim will be presumed to be unpatentable in view of the same prior art unless the movant in its motion rebuts this presumption.

[Added, 69 FR 49959, Aug. 12, 2004, effective Sept. 13, 2004]

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