Appeal No. 2003-2058
Application No. 09/407,278
a mold surface of his tool (e.g., see lines 61-67 in column 3) as
repeatedly explained by the examiner. It follows that the
argument under consideration lacks persuasive merit.
In addition to the foregoing, the appellants argue that the
Engwall patent is not available as prior art with respect to the
here claimed subject matter. This argument is not convincing for
the reasons thoroughly explained in the answer. Engwall is
available as prior art in the examiner’s section 103 rejection
via 35 U.S.C. § 102(e). See Hazeltine Research, Inc. v. Brenner,
382 U.S. 252, 147 USPQ 429, 430 (1965) and the Manual of Patent
Examining Procedure (MPEP) § 2136.02 (Rev. 1, Feb. 2003).
Moreover, the Engwall patent is available as prior art
notwithstanding apparently common ownership with respect to the
present application because the prior art disqualification
provisions of 35 U.S.C. § 103(c) are not applicable to utility
patent applications of the type under consideration which were
filed before November 29, 1999. See MPEP § 706.02(l)(1).
In response to the examiner’s exposition of this last
mentioned point, the appellants state that, “[i]f this
application had a filing date after November 29, 1999, (which it
could have, quite simply, by filing a Request for Continued
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