Appeal No. 95-4878
Application No. 08/225,087
PCT/DE88/00304 (see MPEP, § 2136.03 (IV) (7th ed., July 1998),
and the examiner’s reliance on WO ‘256, the published
PCT/DE88/00304 application, on page 4 of the final rejection).
Appellants and the examiner contest the availability of
Bluml as prior art under § 103 via § 102(e)(Brief, pages 3-5,
and the Answer, pages 3-4). Section 102(e) of 35 U.S.C.
(1975) states
A person shall be entitled to a patent unless-
....(e) the invention was described in a patent granted
(1) on an application for patent by another filed in the
United States before the invention thereof by the applicant
for patent, or (2) on an international application by
another who has fulfilled the requirements of paragraphs
(1), (2), and (4)of section 371(c) of this title before
the invention thereof by the applicant for patent....
[Numbers in italics added.]
Appellants argue that Bluml has not fulfilled the
requirements of section 371(c)(1), (2), and (4) until the Nov.
27, 1989, filing date of the Bluml U.S. application (Brief,
page 5).
Appellants’ argument is not well taken since it is clear
from the Bluml patent that it issued from a U.S. national
application filed under 35 U.S.C. § 111(a)(i.e., Application
No. 441,379), not a national stage application filed under §
5
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