Appeal No. 96-2376
Application No. 08/195,341
In the instant case, the effective filing date of the
application under examination is February 8, 1994. Both Ogata
(February 1, 1994) and Ijuin (May 7, 1991) were patented prior
to the filing of the instant application. Accordingly, Ogata
and Ijuin are both viable references under 35 U.S.C. 103. It
may very well be that, since Ogata’s patented date does not
constitute a statutory bar under 35 U.S.C. 102(b), appellant
might be able to swear behind the reference with an affidavit
or declaration, in accordance with 37 CFR 1.131. However,
appellant has presented no such affidavit or declaration.
The examiner has established a prima facie case of
obviousness under 35 U.S.C. 103 with regard to claim 5 and
appellant has presented no evidence or convincing argument to
overcome the prima facie case. Further, appellant has
conceded that the examiner’s rejection of claim 4 under 35
U.S.C. 112, second paragraph, was correct.
Accordingly, the examiner’s decision is affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
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