Appeal No. 94-3222
Application 07/815,630
applicants’ claims under 35 U.S.C. § 120 so as to enable one
to establish what constitutes the prior art under 35 U.S.C. §
102.
Moreover, while compliance with the requirements of
35 U.S.C. § 112, first paragraph, is normally determined as of
the filing date of the pending application, the examiner, when
faced with an intervening reference, may be required to focus
on the filing date of a prior application as the result of the
applicants’ claims for priority under 35 U.S.C. § 120. United
States Steel Corp. v. Phillips Petroleum Co., 865 F.2d 1247,
1251, 9 USPQ2d 1461, 1464 (Fed. Cir. 1989). We appear to have
just such a case before us.
On their face, Stolle, U.S. 5,130,128, filed November 6,
1989, and Beck, U.S. 4,956,349, filed April 4, 1988, appear to
be prior art under 35 U.S.C. § 102(e) whether or not they are
commonly assigned with this application filed in the names of
Beck and Stolle. See In re Bartfeld, 925 F.2d 1450, 17 USPQ2d
1885 (Fed. Cir. 1991). Moreover, Stolle and Beck, U.S.
4,636,384 and U.S. 4,732,757 may be prior art under 35 U.S.C.
§ 102(b). Accordingly, faced with what prima facie appears at
least in part to be prior art of record and applicants’ claims
for priority under 35 U.S.C. § 120 in this case, the examiner
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