Board of Patent Appeals and Interferences
Patent and Trademark Office (P.T.O.)
*1 BEHR ET AL.
v.
TALBOTT ET AL.
Patent Interference No. 102,366
October 27, 1992
RECONSIDERATION
Before Calvert
Vice Chairman
Boler, R. Smith, Mccandlish and Martin
Examiners-in-Chief
Calvert
Talbott et al. have requested reconsideration of our July 1, 1992, decision (Paper No. 63) to the extent we held: (1) that the burden of proof with respect to motions filed under 37 CFR 1.633(a) and 1.633(g) alleging a failure to comply with the written description requirement as to copied and substantially copied patent claims is on the moving party; and (2) that the Talbott et al. motions under 37 CFR 1.633(a) and 1.633(g) failed to meet this burden of proof. [FN1] In support, Talbott et al. argue that we misapprehended or overlooked the following points, which are numbered below in the same way as in their request for reconsideration:
1A. That Behr et al. have not satisfied the requisite burden of proof under 37 CFR 1.606 and 1.607;
1B. That Squires v. Corbett, 560 F.2d 424, 194 USPQ 513 (CCPA1977), also puts the burden of proof on Behr et al.;
1C. That the board's determination of burden of proof requirements not expressly in the rules constitutes "rule making" properly reserved to the Commissioner under 35 U.S.C. § 6;
2. That Talbott et al. have met the requirements of 37 CFR 1.633(a) and (g), 1.637(a) and (b), 1.639(a) and (b); and
3. That we have confused the description and enablement requirements in construing the Behr et al. claims.
For the following reasons, we do not find any of these arguments persuasive.
Argument 1A: That Behr et al. have not satisfied the requisite burden of proof under 37 CFR 1.606 and 1.607
Talbott et al. argue that a comparison of the language of sections 1.606 and 1.607 of the new interference rules (37 CFR 1.601 et seq.) with sections 1.203 and 1.205 of the old interference rules (37 CFR 1.201 et seq.) reveals no substantive change in the applicant's "burden to provoke and maintain an interference with a patentee" (request at 7). As Talbott et al. correctly note, these new rules are similar to the old rules in that they require an applicant who is attempting to provoke an interference with a patentee to show that the application claims which are identified as corresponding to the count are (1) "patentable to the applicant" [FN2] and (2) directed to the "same patentable invention" as the patent claims identified as corresponding to the count. [FN3] However, these rules are applicable only until an interference is declared. Our decision concerns the burden of proof with respect to preliminary motions filed under 37 CFR 1.633(a) and (g) after an interference has been declared and therefore is not in conflict with 37 CFR 1.606 and 1.607. Thus, there is no merit to the contention that our decision relieved Behr et al. of their "threshold" jurisdictional burden under 37 CFR 1.606 and 1.607 to establish a prima facie case of compliance with the requirements of the first paragraph of 35 U.S.C. § 112. That the ex parte examiner concluded that Behr et al. met their initial burden of proof under these rules is apparent from the fact that the interference was declared. Note that the question of whether Behr et al. in fact satisfied their initial burden of proof is not reviewable at final hearing. Compare Walsh v. Sakai, 167 USPQ 465, 466 (Comm'r Pats. 1970) (after the summary judgment stage under 37 CFR 1.228 has passed, there is no provision in the rules for reversion to that stage at the behest of the patentee).
Argument 1B: That Squires v. Corbett, 560 F.2d 424, 194 USPQ 513 (CCPA1977), also puts the burden of proof on Behr et al.
*2 Talbott et al. contend that our decision fails to consider the following parts of Squires v. Corbett, 560 F.2d 424, 194 USPQ 513 (CCPA1977):
As a prerequisite to the declaration of an interference under 35 U.S.C. 135(a) and 37 C.F.R. 1.201(a) [footnote omitted], the Commissioner must decide that the "application claim," whether or not identical to the "patent claim," is both patentable and drawn to substantially the same invention as the "patent claim." Failure of either condition precludes the possibility of interference contemplated by the statute. [Emphasis by Talbott et al.]
* * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * * *
Manifestly, it is at best confusing, and perhaps erroneous, to speak of a party's right to make the "count." The semantically appropriate statement of the inquiry is whether a party has the right to make that claim presently pending in his application which the Commissioner has determined to be both patentable and drawn to substantially the same invention as the patent claim. [Original emphasis.]
560 F.2d at 433, 194 USPQ at 519.
We conclude that for an applicant to have a right to copy a patent claim he must have support for the full scope of the claim [citation omitted]. This conclusion rests on the recognition that the right to make a claim in a pending application, even for purposes of interference, depends, as it does with all pending claims, on compliance with the requirements of 35 U.S.C. § 112, first paragraph. There is no other standard. [Emphasis by Talbott et al.]
560 F.2d at 435, 194 USPQ at 520.
It is not clear what it is in these passages that Talbott et al. believe we have overlooked or misapprehended. That application claims copied or substantially copied from a patent for the purpose of provoking an interference must comply with the requirements of the first paragraph of 35 U.S.C. § 112, including the written description requirement, is not in dispute. See In re Spina, --- F.2d ----, 24 USPQ2d 1142, 1144 (Fed.Cir.1992). Rather, the question is who has the burden of demonstrating compliance or lack of compliance with the written description requirement as to such claims. To the extent Squires puts the burden on the copier, it is inapplicable to preliminary motions under 37 CFR 1.633(a) and (g) for the same reasons as the other "old rule" "right to make" cases cited in our decision are inapplicable, i.e., the new rules put the burden of proof on the moving party for all motions and the new rules do not require an applicant to copy or substantially copy a patent claim in order to provoke an interference.
Argument 1C: That the board's determination of burden of proof requirements not expressly in the rules constitutes rulemaking properly reserved to the Commissioner under 35 U.S.C. § 6
*3 Talbott et al. charge that our decision has "contravened the long-standing precedent of the Court and reversed, i.e. shifted, the requisite burden from the applicant to the patentee without any express basis in the rules" (request at 17) and thus effectively constitutes unauthorized rulemaking by the board, rulemaking authority being reserved to the Commissioner by 35 U.S.C. § 6(a). In support, Talbott et al. argue that a comparison of the language used in 37 CFR 1.637(a) and 1.639(a) and (b) with that used in 37 CFR 1.231 reveals no intention to shift the burden of proof with respect to written description support for copied and substantially copied patent claims from the applicant to the patentee. In addition, they contend that if the new rules were intended to shift the burden of proof in this manner, 37 CFR 1.633(a) and (g) would specifically address the burden of proof, as do 37 CFR 1.655(a), 1.657 and 1.56, for example. We do not agree.
As explained in our decision, it should be apparent from 37 CFR 1.637(a) and 1.639(a) and (b), which require that every motion include a statement of material facts and that each material fact be established by proof of record or submitted with the motion in the form of patents, printed publications and affidavits that the burden of proof is on the moving party with respect to all motions, including those filed under 37 CFR 1.633(a) and (g). As noted in our decision, this is even more apparent when 37 CFR 1.637(a) and 1.639(a) and (b) are contrasted with old rule 1.231(b), which merely required that each motion "contain a full statement of the grounds therefor and reasoning in support thereof." It should also be noted that whereas 37 CFR 1.231(a)(1) specifically excluded affidavits, declarations or evidence outside of official records and publications from consideration in connection with a motion to dissolve (e.g., for lack of the right to make), [FN4] a party filing a motion for judgment under 37 CFR 1.633(a) is required by 37 CFR 1.639(a) to file with the motion all of the available evidence the party wishes to have considered in connection with the motion. Irikura v. Petersen, 18 USPQ2d 1362, 1368 (BPAI1990); Orikasa v. Oonishi, 10 USPQ2d 1996, 2000 n. 12 (Comm'r Pats.1989).
In view of the above, although 37 CFR 1.637(a) and 1.639(a) and (b) do not specifically mention the burden of proof, we believe they clearly imply that the burden of proof is on the moving party with respect to all motions under the new rules. Consequently, it would have been redundant to repeat the burden of proof requirements in 37 CFR 1.633(a) and (g), as suggested by Talbott et al. Since our decision on the burden of proof issue does not go beyond what is already implicitly required by the rules, it does not constitute unauthorized rulemaking by the board, as Talbott et al. contend.
*4 Talbott et al. also complain that there is nothing in the "legislative history of the rule making" which demonstrates an intent to shift the burden of proof with respect to written description support for copied and substantially copied patent claims from the applicant to the patentee (request at 20). Talbott et al. have not explained whether they are referring to the administrative notices regarding the new interference rules or to the legislative history of the statutory amendment which led to the development of the new rules, or both. Consequently, we will consider both, starting with the legislative history. As explained in Ethicon v. Quigg, 849 F.2d 1422, 1425, 7 USPQ2d 1152, 1154 (Fed.Cir.1988), a PTO rule is valid so long as it is "reasonably related" to the enabling legislation:
Consistent with its legislative function, Congress "may leave it to administrative officials to establish rules within the prescribed limits of the statute." Patlex Corp. v. Mossinghoff, 758 F.2d 594, 605, 225 USPQ 243, 251 (Fed.Cir.1985) (citing United States v. Grimaud, 220 U.S. 506, 517 (1911)), modified on other grounds, 771 F.2d 480, 226 USPQ 985 (Fed.Cir.1985). In the patent field, Congress has done precisely that by providing that the Commissioner "may, subject to the approval of the Secretary of Commerce, establish regulations, not inconsistent with law, for the conduct of proceedings in the Patent and Trademark Office." 35 U.S.C. § 6(a). In this type of situation, "the validity of a regulation promulgated thereunder will be sustained so long as it is 'reasonably related to the purposes of the enabling legislation.' " Mourning v. Family Publications Service, Inc., 411 U.S. 356, 369 (1973) (quoting Thorpe v. Housing Authority of Durham, 393 U.S. 268, 280 (1969)); see Chevron U.S.A. Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 844 (1984); Patlex, 758 F.2d at 606, 225 USPQ at 252.
As noted in Patent Interference Proceedings; Final Rule (hereinafter Final Rule Notice), 49 Fed.Reg. 48416, 48416 (Dec. 12, 1984), reprinted in 1050 O.G. 385, 385 (Jan. 29, 1985), corrections printed in 50 Fed.Reg. 23122 (May 31, 1985), 1059 O.G. 27 (Oct. 22, 1985), the legislation which led to the promulgation of the new interference rules is Title II of The Patent Law Amendments Act of 1984, Pub.L. 98-622, sections 201-202, 98 Stat. 3383, 3386. The purpose of these sections of the Act was briefly explained as follows in a section-by-section analysis of the corresponding House bill, H.R. 6286: "By combining the two [predecessor] Boards into a single Board having jurisdiction to consider priority and patentability, it is expected that interferences will become simpler, more expeditious, and less costly." 130 Cong.Rec. 28,065, 28,072 (1984), reprinted in 1984 U.S.Code Cong. & Admin.News 5827, 5837. Consistent with these Congressional expectations, the new interference rules were designed to "improve interference procedure so that the rights of parties in interferences are determined at an early date and the overall process of examining patent applications which become involved in interferences is simplified." Final Rule Notice, 49 Fed.Reg. at 48416, 1050 O.G. at 385. In our opinion, assigning the burden of proof to the moving party with respect to all motions filed under the new interference rules is reasonably related to the Congressional intent that interference procedures be simplified. As a result, 37 CFR 1.637(a) and 1.639(a) and (b) are valid rules, even though, as Talbott et al. correctly point out, the burden of proof for preliminary motions under the new interference rules is not specifically addressed in the legislative history or in the relevant rulemaking notices, which include, in addition to the Final Rule Notice, the following notices of proposed rulemaking: Patent Interference Proceedings; Advance Notice of Proposed Rulemaking, 48 Fed.Reg. 34,836 (Aug. 1, 1983) (not reprinted in the Official Gazette); Patent Interference Proceedings; Proposed Rule, 49 Fed.Reg. 3,768 (Jan. 30, 1984), reprinted in 1039 O.G. 11 (Feb. 14, 1984).
Argument 2: That Talbott et al. have met the requirements of 37 CFR 1.633(a) and (g), 1.637(a) and (b), 1.639(a) and (b)
*5 Talbott et al. also complain that it is not clear whether our decision has shifted the "ultimate" burden of proof from the applicant to the moving party patentee or merely increased the amount of evidence required to shift the ultimate burden from the moving party patentee to the applicant. We believe it is clear from our decision that the ultimate burden of proof (i.e., the burden of persuasion) is initially on and remains on the moving party patentee. As explained in our decision, a patentee moving under 37 CFR 1.633(a) or (g) on the ground that the applicant lacks written description support for copied or substantially copied patent claims has the burden of proving a lack of express or inherent support by a preponderance of the evidence. If the applicant submits evidence in opposition, all of the evidence submitted with the motion, opposition and reply must be considered as a whole in order to determine whether the patentee has demonstrated a lack of written description support by a preponderance of the evidence.
Talbott et al. also contend that our construction of 37 CFR 1.639(a) and (b) so as to require proof of material facts in the form of patents, printed publications or affidavits suggests that the necessary proof cannot already reside in the involved application or patent files. That this was not our intention should be clear from footnote 6 at page 10 of our decision, wherein we quoted 37 CFR 1.639(a), which states that proof of material facts must be filed and served "unless the proof relied upon is part of the interference file or any earlier application filed in the United States of which a party has been accorded or seeks to be accorded benefit." However, by way of clarification, we hereby amend line 2 of page 10 of our decision by inserting the phrase", which may be" after "proof."
Talbott et al. next argue that if it is assumed for the sake of argument that they have the burden of proving lack of written description support, they have provided sufficient evidence to meet this burden. This argument is unconvincing because it is not supported by a discussion of the evidence. Furthermore, as explained in our decision, Talbott et al. failed to address Behr et al. claims 9 and 13, which do not require a "substantial distance downstream." Nor did they provide any evidence or argument establishing that the "substantial distance downstream from a forming collar" limitation in Behr et al. claims 4 and 10 and the count does not have inherent support in the Behr et al. application as filed or in their benefit application.
Argument 3: That we have confused the description and enablement requirements in construing the Behr et al. claims
Prior to arguing that we have confused the written description and enablement requirements, Talbott et al. offer several other arguments which we find unconvincing. The first is that we effectively read the "substantial" distance limitation out of the count and the involved Behr et al. claims when we construed the language "positioned a substantial distance down stream from a forming collar so that the film material can accommodate movement of the mating flexible strips into alignment with each other until their respective interlocking profiles interlock" as meaning a distance downstream from the forming collar which is sufficient to perform the recited function, i.e., sufficient to enable the film material to accommodate movement of the mating flexible strips into alignment with each other until their respective interlocking profiles interlock. According to Talbott et al., this construction in inconsistent with the Talbott et al. disclosure, in which the count and the Behr et al. claims originated.
*6 This argument is unpersuasive for several reasons. As explained in our decision, a count is given its broadest reasonable construction without resort to the originating disclosure unless the count is ambiguous. [FN5] The same rule of construction applies to unambiguous application claims which are copies or substantial copies of involved patent claims. That is, unambiguous application claims involved in an interference are construed in the same way as they are during ex parte prosecution, i.e., they are given the broadest reasonable construction consistent with the corresponding disclosure, which in this case is the Behr et al. disclosure. However, an ambiguous application claim that is a copy or substantial copy of an involved patent claim will be construed in the context of the patent from which it was copied. In re Spina, supra. Since Talbott et al. have not alleged, let alone demonstrated, that the count and the involved Behr et al. claims are ambiguous, they are given the broadest reasonable construction consistent with the Behr et al. disclosure as originally filed.
Furthermore, even if we were to interpret the count and the Behr et al. claims in light of the Talbott et al. patent disclosure, our interpretation would remain unchanged because it is consistent with the discussion of "substantial distance" at column 4, lines 28-43 of the Talbott et al. patent.
To the extent Talbott et al. are suggesting that the recited function defines only the term "distance downstream" and that "substantial" is a separate limitation implying a distance greater than the minimum distance needed to perform this function, we also disagree. When the count and Behr et al. claims 4 and 10 are given their broadest reasonable interpretation, the recited function defines the entire term "substantial distance downstream," not merely the term "distance downstream." We would reach the same conclusion even if we construed the count and these claims in light of the Talbott et al. disclosure.
The "substantial distance downstream" limitation does not even appear in Behr et al. claims 9 and 13. Therefore, even assuming for the sake of argument that "substantial" constitutes a separate limitation for which Behr et al. have no support, it does not necessarily follow that Behr et al. claims 9 and 13 likewise lack support. The fact that claims 9 and 13 stand designated as corresponding to the count along with claims 4 and 10, which do include this limitation, does not mean that claims 9 and 13 implicitly contain this limitation, as Talbott et al. suggest. It merely means that there is no patentable distinction in the obviousness sense between claims 9 and 13, on the one hand, and the count and claims 4 and 10 on the other. See 37 CFR 1.601(f) and (n). As a result, this interference would proceed to the priority stage even if Talbott et al. had succeeded in showing that Behr et al. lack support for the "substantial distance downstream" limitation in the Behr et al. claims 4 and 10.
*7 The argument that our decision misapprehends or overlooks the distinction between the enablement and written description requirements is also without merit. As explained in our decision, the question with respect to Behr et al. claims 9 and 13, which do not include the "substantial distance downstream" limitation, is whether one skilled in the art, reading the Behr et al. disclosure as originally filed, would have understood that the press rolls in the steering, joining and closing mechanism 28 (Fig. 1) are necessarily positioned so as to permit the film material to accommodate movement of the mating flexible strips into alignment with each other until their respective interlocking profiles interlock. As for Behr et al. claims 4 and 10, which do include this limitation, the question is whether the artisan would have understood that the press rolls are necessarily positioned downstream from the forming collar by a distance sufficient to permit the film material to accommodate movement of the mating flexible strips into alignment with each other until their respective interlocking profiles interlock. An enablement inquiry, in contrast, would be whether one skilled in the art would have known how to mount the Behr et al. pinch rollers in the positions called for by these claims.
The argument that the Behr et al. disclosure lacks any conscious appreciation of the concept of a "substantial distance downstream" is without merit for the reasons given in our initial decision.
Summary
Since, for the foregoing reasons, we are not persuaded of any error in our initial decision, the request for reconsideration is denied. However, we have corrected a typographical error in the fourth line from the bottom at page 20 by changing "that" to "than" and have clarified line 2 at page 10 by inserting", which may be" after "proof."
BOARD OF PATENT APPEALS AND INTERFERENCES
Ian A. Calvert
Vice Chairman
Ronald H. Smith
Examiner-in-Chief
Harrison E. McCandlish
Examiner-in-Chief
CONCURRING-IN-PART AND DISSENTING-IN-PART
Examiner-in-Chief
I concur in the majority's position on reconsideration as regards the interpretation of the count and the Behr et al. claims which correspond to the count. I also concur in their conclusion that 37 CFR 1.606 and 1.607 are inapplicable after an interference is declared. However, I agree with Talbott et al. that 37 CFR 1.637(a) and 1.639(a) and (b) do not require, and the relevant legislative and rulemaking history do not suggest, that the burden of proof with respect to all motions brought under the new interference rules, including preliminary motions under 37 CFR 1.633(a) and (g), is on the moving party.
Considering first the language of 37 CFR 1.637(a) and 1.639(a) and (b), while these rules require every motion to include a statement of material facts, each of which is supported by proof, they do not explain who has the ultimate burden of proof (i.e., the burden of persuasion) on the issue raised by the motion, as opposed to who has the burden of merely going forward (i.e., the burden of raising the issue). Consequently, it is not clear that these rules require the material facts alleged in a motion to be sufficient to satisfy the ultimate burden of proof. Nor is such a requirement apparent from the legislative history or the rulemaking notices, which are silent regarding the burden of proof with respect to preliminary motions. Since the Final Rule Notice discusses a number of ways in which the practice under the new rules will differ from the practice under the old rules, [FN6] one would expect it to explain that the PTO was abandoning the long-standing practice of putting the burden of proof on the issue of written description support for copied or substantially copied patent claims on the copier if such a fundamental change in practice was intended. Nor is such an intention expressed in MPEP Chapter 2300, entitled "Interference Proceedings under Public Law 98-622," which describes the practice under the new interference rules, or in any published PTO notice.
*8 For the foregoing reasons, 37 CFR 1.637(a) and 1.639(a) and (b) should be construed in a manner which is consistent with the retention of this long-standing practice. Thus, with respect to motions under 37 CFR 1.633(a) and (g) alleging lack of written description support for involved application claims which are copies or substantial copies of involved patent claims, the moving party patentee has the burden of going forward by specifically identifying the limitations which lack written description support; however, it is the applicant-copier who has the burden of proving express or inherent support. Furthermore, this burden must be met by clear and convincing evidence. Martin v. Mayer, 823 F.2d 500, 503, 3 USPQ2d 1333, 1335 (Fed.Cir.1987). As for involved claims which are not copies or substantial copies of involved patent claims, the moving party has the burden of going forward and the burden of proving a lack of express written description support by a preponderance of the evidence. [FN7] Since Alsenz v. Hargraves, 13 USPQ2d 1371 (BPAI1989), is consistent with the foregoing interpretation, it should not be overruled.
I am also not persuaded that retaining the old practice with respect to copied and substantially copied patent claims is inconsistent with the fact that the new rules do not require an applicant to copy or substantially copy a patent claim for the purpose of provoking an interference with a patent. While it is true that the new rules do not require an applicant to copy or substantially copy a patent claim to provoke an interference, neither do they prohibit an applicant from doing so. In fact, 37 CFR 1.607(c), by specifically requiring an applicant who has copied or substantially copied a patent claim to advise the PTO of this fact unless the claim was presented in response to suggestion by an examiner, contemplates that some interferences under the new rules will involve copied or substantially copied patent claims. It is not apparent to me why it would be problematic to continue the old practice with respect to such claims.
Assuming for the sake of argument that the majority have correctly interpreted 37 CFR 1.637(a) and 1.639(a) and (b) as putting the burden of proof on the moving party for all motions, including all preliminary motions, I agree with the majority that these rules are reasonably related to the enabling legislation and therefore constitute a valid exercise of the Commissioner's rulemaking authority under 35 U.S.C. § 6(a).
CONCURRING-IN-PART AND DISSENTING-IN-PART
John C. Martin
Examiner-in-Chief
Like Examiner-in-Chief Boler, I agree with the majority's interpretation of the count and the involved Behr et al. claims and with the majority's conclusion that 37 CFR 1.606 and 1.607 are inapplicable after an interference is declared. Furthermore, for the reasons given by Examiner-in-Chief Boler, I agree with his position that the burden of proof on the issue of written description support for application claims which are copies or substantial copies of involved patent claims should remain on the copier. However, as regards involved application claims which are not copies or substantial copies of involved patent claims, I would put the burden on the moving party to show a lack of express or inherent support, instead of just a lack of express support.
*9 Applying that burden of proof to Behr et al. in the present case, I believe they have satisfied it with respect to the Talbott et al. 37 CFR 1.633(a) and (g) motions. It is clear from page 7, lines 4-23 of the Behr et al. specification as filed that the steering, joining, and closing mechanism 28 is located downstream from the forming collar. The specification further states (p. 7, lines 29-32) that mechanism 28 "press[es] together and interlock [s] the rib and groove elements 15, 15' of opposed plies 18, 19" and that the press rolls in mechanism 28 "bring the interlocking closure elements 15, 15' into proper alignment for securing them together." Inasmuch as the pinch rollers inherently must accommodate some movement of the film material while the interlocking elements 15 and 15' are brought into interlocking engagement by the pinch rollers, these rollers, in my view, clearly satisfy the requirement of the count and Behr et al. claims 4 and 10 that the rollers be "positioned a substantial distance down stream from a forming collar so that the film material can accommodate movement of the mating flexible strips into alignment with each other until their respective interlocking profiles interlock." For the same reason, there is support for Behr et al. claims 9 and 13, which employ similar functional language without the "substantial distance downstream" limitation.
FN1. The following typographical error is noted at page 20 of the decision, fourth line from the bottom: "that" should read "than."
FN2. 37 CFR 1.607(a)(5) requires the applicant to apply the terms of any application claim identified as corresponding to the count and not previously in the application to the disclosure of the application.
FN3. 37 CFR 1.607(a)(4) requires the applicant to explain why any claim which does not correspond exactly to the proposed count should be designated as corresponding thereto.
FN4. See In re Decision dated Aug. 12, 1968, 160 USPQ 154, 155 (Comm'r Pats.1968); Manual of Patent Examining Procedure § 1105.02 (5th ed., 1985).
FN5. Note that broad count language is not ambiguous merely because it reads on more than one embodiment. Kroekel v. Shah, 558 F.2d 29, 32, 194 USPQ 544, 547 (CCPA1977). Nor is an ambiguity established by the fact that the parties offer different interpretations of the count. Id.
FN6. See, e.g., 49 Fed.Reg. at 48417, 1050 O.G. at 386 (rejecting the policy announced in Brown v. Braddick, 595 F.2d 961, 967, 203 USPQ 95, 101- 102 (5th Cir.1979)); 49 Fed.Reg. at 48423, 1050 O.G. at 392 (overruling Chan v. Akiba v. Clayton, 189 USPQ 621 (Comm'r Pats.1975)); 49 Fed.Reg. at 48427, 1050 O.G. at 396 (overruling prior construction of PTO rules in Holmes v. Kelly, 586 F.2d 234, 199 USPQ 778 (CCPA1978), and Brecker v. Jennings, 204 USPQ 663 (Bd.Pat.Int.1978); 49 Fed.Reg. at 48439, 1050 O.G. at 408 (overruling headnote [1] of Reddy v. Davis, 187 USPQ 386 (Comm'r Pats.1975)); 49 Fed.Reg. at 48440, 1050 O.G. at 409 (rejecting estoppel rule announced in International Cellucotton Products Co. v. Coe, 35 F.2d 869, 30 USPQ 366 (D.C.Cir.1936)).
FN7. For the reasons given in my initial concurring-in-part and dissenting-in-part opinion, I would put the burden of showing a lack of inherent support on the applicant who claims are at issue.
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