37 CFR § 41.207 — Presumptions. (MPEP Coverage Index) – BlueIron IP
37 CFR § 41.207 Presumptions.
Source: Patent Rule (37 CFR)BlueIron Update:
This page consolidates MPEP guidance interpreting 37 CFR § 41.207, including 7 rules from the Manual of Patent Examining Procedure. It is provided as guidance, with links to the ground truth sources. This is information only, it is not legal advice.
Official MPEP § 41.207 — Presumptions.
Source: USPTOLast Modified: 10/30/2024 08:50:22
41.207 Presumptions.
- (a)
Priority—(1)
Order of invention.
Parties are presumed to have invented interfering subject matter in
the order of the dates of their accorded benefit for each count. If
two parties are accorded the benefit of the same earliest date of
constructive reduction to practice, then neither party is entitled to
a presumption of priority with respect to the other such party.
- (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.
- (b)
Claim correspondence. (1) For the purposes of
determining priority and derivation, all claims of a party
corresponding to the count are presumed to stand or fall together. To
challenge this presumption, a party must file a timely substantive
motion to have a corresponding claim designated as not corresponding
to the count. No presumption based on claim correspondence regarding
the grouping of claims exists for other grounds of
unpatentability.
- (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]
| MPEP Section | Rules |
|---|---|
| MPEP § 2301.02 | |
| MPEP § 2301.03 |