Appeal No. 1997-4352
Application No. 08/422,689
the filing date of parent application Serial No. 07/926,014,
the references relied on by the examiner bear publication
dates of February 23, 1993 (Kantor) and August, 1992 (Simone).
Thus, these references, by themselves, would not be viable
references under 35 U.S.C.
§ 103, through 35 U.S.C. 102(a). However, we note that both
references are directed to the “Autodesk Animator” produced by
Autodesk, Inc. and there is evidence, within the disclosure of
Kantor, that this system was available to the public no later
than January 28, 1992. The “Autodesk Animator” system is
considered prior art based upon the Kantor disclosure which is
not itself a prior art publication but indicates that the
“Autodesk Animator” was available, in this country, at least
seven months prior to the effective filing date of the instant
application. See In re Epstein, 32 F.3d 1559, 1567-1568, 31
USPQ2d 1817, 1822-1823 (Fed. Cir. 1994). Accordingly, we will
consider the disclosures of Kantor and Simone as they relate
to the capabilities of the “Autodesk Animator” system and that
system’s relevance to the instant claimed subject matter. 2
2Appellants’ brief does not indicate any objection to the
examiner’s application of Kantor and Simone with regard to the
publication dates of the references.
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