Appeal No. 96-2121
Application 08/252,984
further noted that an article submitted by the appellant, "The
Privateers: International Telephone Calls," The Economist,
September 12, 1992 (copy attached), indicates that the IDT
machine has been in operation for 2 and ½ years. In that regard,
the appellant filed no reply and has not disputed the examiner’s
view.
It appears that the § 131 affidavit submitted by the
appellant was only intended to antedate the Business Week
articles rather than the IDT machine itself. But, as is
clarified by the examiner on pages 14-15 of the answer, the prior
art relied on is the IDT machine, and not the Business Week
articles. Accordingly, since the IDT machine pre-dates the
appellant’s effective filing date by more than one year, the
applicable provision of 35 U.S.C. § 102 is § 102(b) and thus the
appellant may not antedate it by use of any § 131 affidavit. The
IDT machine constitutes statutory-bar type of prior art under 35
U.S.C. § 102(b).
The appellant also incorrectly argues that the anticipation
rejection is improperly based on more than a single prior art
reference. The argument is misplaced, since the actual prior art
in this case is the IDT machine, and not the two Business Week
articles which discuss it. The Business Week articles merely are
evidence of the pre-existence of the IDT machine, like the type
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