Appeal No. 2002-2055 Page 2
Application No. 09/727,547
BACKGROUND
The appellants’ invention relates to a method of reducing by-product deposition
inside wafer processing equipment. The examiner rejected claims 9, 11 and 14 under
35 U.S.C. § 102(e) as being anticipated by Comita et al. U.S. Patent Application
Publication US2001/0008618A1 of July 19, 2001 (Comita), claims 9-12 and 14 under
35 U.S.C. § 103(a) as being unpatentable over Comita, and claim 13 under 35 U.S.C.
§ 103(a) as being unpatentable over Comita in view of Nozaki et al. Japanese Kokai
Patent Application SHO 61-117824 of June 5, 1986 (Nozaki).
The appellants did not traverse the rejections made by the examiner. Their sole
argument was that Comita was not a proper reference because its effective filing date
did not precede the filing date of their own U.S. Provisional Patent Application No.
60/070,697, which was filed on January 7, 1998, and which in their view established a
constructive reduction to practice of the invention disclosed in the present application.
However, Provisional Patent Application No. 60/070,697 became abandoned one year
later by virtue of 35 U.S.C. § 111(b)(5), and therefore was not copending with the
parent of the present application.
The appellants admitted that the present application was not entitled to the
effective filing date of their provisional application, however, they argued that the
provisional application “establishes a constructive reduction to practice or conception
with diligence prior to the filing date of Comita,” and therefore bars Comita from being
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