C.F.R. » Title 37 » CHAPTER I—UNITED STATES PATENT AND TRADEMARK OFFICE, DEPARTMENT OF COMMERCE › SUBCHAPTER A—GENERAL › PART 41—PRACTICE BEFORE THE PATENT TRIAL AND APPEAL BOARD › Subpart E—Patent Interferences

37 C.F.R. § 41.208

Content of substantive and responsive motions

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The general requirements for motions in contested cases are stated at § 41.121(c).

(a) In an interference, substantive motions must:

(1) Raise a threshold issue,

(2) Seek to change the scope of the definition of the interfering subject matter or the correspondence of claims to the count,

(3) Seek to change the benefit accorded for the count, or

(4) Seek judgment on derivation or on priority.

(b) To be sufficient, a motion must provide a showing, supported with appropriate evidence, such that, if unrebutted, it would justify the relief sought. The burden of proof is on the movant.

(c) Showing patentability. (1) A party moving to add or amend a claim must show the claim is patentable.

(2) A party moving to add or amend a count must show the count is patentable over prior art.

Notes of Decisions
Cited in 10 cases, 2007–2010 · leading case: Cytologic, Inc. v. Biopheresis Gmbh, 682 F. Supp. 2d 1 (D.D.C. 2010).
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Cytologic, Inc. v. Biopheresis Gmbh, 682 F. Supp. 2d 1 (D.D.C. 2010). · cites it 2× “” 8 In addition, although not cited by the Board, 37 C.F.R. § 41.208 (b) — which governs the requirements for substantive motions filed in patent interferences (as opposed to contested cases in general) and serves to supplement the general requirements for motions filed in…”
Spine v. Biedermann Motech Gmbh, 684 F. Supp. 2d 68 (D.D.C. 2010). · cites it 2× “See 37 C.F.R. §§ 41.208 , 41.200. “To be sufficient, a motion must provide a showing, supported with appropriate evidence, such that, if unrebutted, it would justify the relief sought.”
Robert D. Brand, Capital Mach. Co., Inc., & Indiana Forge, LLC v. Thomas A. Miller, Darrel C. Pinkston, & Miller Veneers, Inc., 487 F.3d 862 (Fed. Cir. 2007). “” 37 C.F.R. § 41.208 . Detailed rules govern depositions and the taking of testimony, requiring objections to be served and entered on the record, and permitting parties to move to exclude evidence from the record.”
Sears Ecological Applications Co. v. MLI Assocs., LLC, 652 F. Supp. 2d 244 (N.D.N.Y. 2009). “at 36-37 (citing 37 C.F.R. § 41.208 (b)).) Under this framework, the Board concluded that original claims 3 and 5 of the '975 application were not materially different from amended claims 42-44.”
Human Genome Sciences, Inc. v. Amgen, Inc., 552 F. Supp. 2d 466 (D. Del. 2008). “” 37 C.F.R. § 41.208 (b). “If the examiner-in-chiefs rulings on the preliminary motions do not terminate the interference,” General Instrument, 995 F.”
Rolls-Royce PLC v. United Tech. Corp., 730 F. Supp. 2d 489 (E.D. Va. 2009). “-, See also 37 C.F.R. § 41.208 . (stating that "the burden of proof is on the movant” to "provide a showing, supported with appropriate evidence, such that, if unrebutted, it would justify the relief sought.”
Human Genome Sciences, Inc. v. Genentech, Inc., 589 F. Supp. 2d 512 (D. Del. 2008). “” 37 C.F.R. § 41.208 (b). “If the examiner-in-chiefs rulings on the preliminary motions do not terminate the interference,” General Instrument, 995 F.”
Spine v. Biedermann Motech Gmbh (D.D.C. 2010). · cites it 2× “See 37 C.F.R. §§ 41.208 , 41.200. “To be sufficient, a motion must provide a showing, supported with appropriate evidence, such that, if unrebutted, it would justify the relief sought.”
Cytologic, Inc. v. Biopheresis Gmbh (D.D.C. 2010). · cites it 2× “” 37 C.F.R. § 41.208 (b). Rather, it appears that Cytologic disagrees only as to what showing it was required to make in order to meet that burden of proof.”
Brand v. Miller (Fed. Cir. 2007). “” 37 C.F.R. § 41.208 . Detailed rules govern depositions and the taking of testimony, requiring objections to be served and entered on the record, and permitting parties to move to exclude evidence from the record.”
— 37 C.F.R. § 41.208(b) — 1 case
Cytologic, Inc. v. Biopheresis Gmbh (D.D.C. 2010). “” 37 C.F.R. § 41.208 (b). Rather, it appears that Cytologic disagrees only as to what showing it was required to make in order to meet that burden of proof.”
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