Appeal No. 2002-0913
Application No. 09/107,643
of its parent), and appellant does not argue otherwise.
Appellant asserts, however, that the appealed claims should be
accorded the benefit of the filing date of design application
Serial No. 07/093,681 filed September 8, 1987, which design
application is the first application in a line of applications
that can be traced forward to the present application. This
would nullify Foreman as a bar under 35 U.S.C. § 102(b) against
the appealed claims.3 Appellant would then rely on the Tracy I
declaration to swear behind 35 U.S.C. § 102(e) effective filing
date of Foreman. Thus, appellant’s effort to eliminate Foreman
as a reference involves two steps, the first step being to gain
benefit of the September 8, 1987 filing date of the ‘681 design
application, and the second step being to use the Tracy I
declaration to swear behind the October 10, 1986 effective filing
date of Foreman. Appellant must prevail on both issues in order
to eliminate Foreman as a reference.
The examiner considers that the appealed claims should not
be accorded the benefit of the filing date of the ‘681 design
3
3Foreman would still qualify as a reference under 35 U.S.C.
§ 102(e) because the effective filing date of October 10, 1986 of
the Foreman patent is earlier than the September 8, 1987 filing
date of the ‘681 design application.
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