Appeal No. 94-0825
Application 07/908,860
OPINION
The following facts do not appear to be in dispute between
the examiner and appellants: (1) the appealed claims have a
priority date of February 3, 1989, since appellants have
perfected their claim of priority with a certified translation of
the French priority document; (2) the Australian Patent
application was published on October 19, 1989; and (3) the
Derwent abstract of the Australian Patent application indicates
“priority” to abandoned U.S. Patent application 07/181,623 filed
April 4, 1988 (see the brief, page 6).
The sole issue before us is whether it is proper for the
examiner to reject claims under § 102(g) based upon a foreign
application published after appellants’ effective filing date
that claims priority to an abandoned U.S. patent application
filed prior to appellants’ effective filing date (see the brief,
page 4). We have carefully reviewed the appellants’ arguments in
the main and reply briefs and the examiner’s position stated in
the answer. However, it appears that this issue is directly on
point with Ex parte Smolka , a decision of an expanded panel of4
the Board of Appeals, which states, at page 234, “[I]t is our
4207 USPQ 232 (Bd. App. 1980), a copy of which is attached
to this decision.
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