Appeal 2006-1776
Application 10/075,976
Research, Inc. v. Brenner, 382 U.S. 252 (1965); In re Zenitz, 333 F.2d 924, 926,
142 USPQ 158, 159 (CCPA 1964). “35 U.S.C. § 103 is in parimateria with 35
U.S.C. § 102(e).”
Thus, the 35 U.S.C. § 102(e) date of a published U.S. application that did
not result from, or claim the benefit of, an international application is its earliest
effective U.S. filing date, taking into consideration (1) any proper benefit claims to
a prior U.S. application under 35 U.S.C. § 120 (or 35 U.S.C. § 119(e), which is not
at issue in this appeal) and (2) whether any prior application describes in
compliance with 35 U.S.C. § 112, first paragraph, the subject matter used to make
the rejection. Whether the published application, or its parent application, was
abandoned is not relevant to the prior art status of the published U.S. patent
application.
ANALYSIS
The second Lively application is a U.S. patent application publication
(Document 2002/0090240 A1) filed under 35 U.S.C. § 111(a), on March 14, 2002.
The second Lively application claims the benefit under 35 U.S.C. § 120 of the
prior-filed non-provisional first Lively application filed under 35 U.S.C. 111(a), on
March 29, 2000. Accordingly, the earliest effective U.S. filing date of the second
Lively application is the March 29, 2000, filing date of the first Lively application
as to the subject matter described in the manner provided by 35 U.S.C. § 112, first
paragraph, in both the first and second Lively applications
Therefore, the prior art date of the published Lively application under 35
U.S.C. § 102(e) is the earliest effective U.S. filing date, which is March 29, 2000,
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