Appeal No. 1996-1556
Application No. 08/154,135
Appellant then argues that his own declaration of record
establishes that the conception date of the claimed invention
is prior to the publication and filing dates of the Madou
reference. See Brief, page 8. Thus, appellant submits that
the examiner has not established a prima facie case of
obviousness since Madou is no longer available as “prior art”.
Id. In the alternative, appellant submits that the content of
Madou would not have suggested using the claimed solid
electrolyte in a gas sensor that operates in the current mode
(an amperometric sensor). See Brief, pages 8-14. Appellant
also takes the position that the deficiencies of Madou are not
remedied by the disclosures of Lilly, Topol and Oswin. See
Brief, pages 11-14.
We agree with the examiner that appellant is barred from
swearing behind back the publication and filing dates of the
Madou reference since it is qualified as “prior art” under 35
U.S.C.
§ 102(b). We observe that 37 CFR § 1.131 (a)(1993) prohibits
appellant from antedating prior art which is available under
Section 102(b). 37 CFR 1.131(a) specifically states that:
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