Appeal No. 98-0964
Application 08/557,436
utility application is not entitled under 35 U.S.C. § 120 to
benefit of the earlier filing date of the ‘506 design
application. The fact that some of the elements of the
presently claimed subject matter
have support in the earlier filed design application does not
alter this determination, because as to given claimed subject
matter, such as that set forth in independent claim 23 on
appeal, only one effective filing date is applicable. See In
re van Langenhoven, 458 F.2d 132, 137, 173 USPQ 426, 429 (CCPA
1972).
Since appellant has not otherwise contested the examiner's
rejection of claims 23 through 34 under 35 U.S.C. § 102(b), we
sustain the examiner's rejection of those claims on the basis of
the prior sale of the invention which appellant concedes
occurred in April 1994.
Turning next to the examiner's rejection of claims 23
through 34 under the judicially created doctrine of double
patenting over the claim of appellant’s prior U.S. Design Patent
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