Appeal No. 2004-0770
Application No. 09/795,310
119(e)(1)(1999) and is entitled to an effective filing date of May
13, 1999 (see the Manual of Patent Examining Procedure, §
201.04(b), Rev. 1, Feb. 2003). Therefore we determine that Cheng
is available as prior art under 35 U.S.C. § 102(e)(see the final
Office action dated Sep. 17, 2002, Paper No. 7, page 2).
Appellants argue that the examiner’s analysis is in error and
that, on this record, the examiner has not demonstrated that the
specification of the provisional application satisfies the
requirements of 35 U.S.C. § 112, first paragraph (Brief, page 10).
This argument is not persuasive since the examiner has now
demonstrated that the specification of the provisional application
complies with the requirements of 35 U.S.C. § 112, first paragraph
(Answer, page 7). Appellants have not contested the examiner’s
position (see the Reply Brief, page 7).
Appellants argue that the statutory basis for priority under
35 U.S.C. § 102(e) is not § 119, but is § 120 and the provisional
application does not meet the requirements of section 120 (Brief,
pages 11-12; Reply Brief, page 7). This argument is not persuasive
since § 119(e) was established to provide for a domestic priority
system and the provisional application of Cheng meets all the
requirements, as discussed above, to provide an effective date of
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