---
kind: "section"
citation: "37 C.F.R. § 41.208"
title: "37"
number: "41.208"
heading: "Content of substantive and responsive motions."
url: "https://uscodex.org/cfr/37/41.208"
---

# §41.208. Content of substantive and responsive motions.


The general requirements for motions in contested cases are stated at [§ 41.121(c)](/cfr/37/41.121.md?p=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

### Authority

Authority: 35 U.S.C. 2(b)(2), 3(a)(2)(A), 21, 23, 32, 41, 134, 135, and Public Law 112-29.

### Source

Source: 69 FR 50003, Aug. 12, 2004, unless otherwise noted.