Appeal No. 1996-3816 Page 10
Application No. 08/293,331
light of appellant having allegedly detrimentally relied
thereon. In this regard, we consider the plain language of
the third sentence of 35 U.S.C. § 121 to be dispositive of
this issue in that the use of Mine as a reference herein is
clearly not precluded thereby. Nor do we find that equity
would favor the appellant in the present situation in that
appellant voluntarily filed and was in control of the
prosecution of this application as well as the flow (or lack
thereof) of information regarding the existence of
these separately filed applications to the respective
examiners. Also, the present record does not support an
inference of appellant having detrimentally relied on the
prior restriction requirement.
Accordingly, we sustain the examiner's rejection since
the resulting product of Mine's claimed process would be
patentably indistinguishable from the here claimed product
since the process steps are essentially the same as discussed
above.
OTHER ISSUES
In the event of any further prosecution of this
Page: Previous 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 Next
Last modified: November 3, 2007