Appeal No. 1998-0566
Application No. 08/396,005
or from the knowledge generally available to one of ordinary
skill in the art and not from the appellant's disclosure.
See, for example, Uniroyal, Inc. v. Rudkin-Wiley Corp., 837
F.2d 1044, 1052, 5 USPQ2d 1434, 1439 (Fed. Cir.), cert.
denied, 488 U.S. 825 (1988).
All of the rejections under Section 103 utilize
Kanzelberger as the primary reference. As a preliminary
matter, the appellant has argued that Kanzelberger is not a
proper reference under 35 U.S.C. § 103 (Brief, pages 6 and 7).
As we understand this argument, it is grounded in the premise
that Kanzelberger does not qualify as a reference under 35
U.S.C. § 102(b), and therefore should have been cited under
subsections 102(f) or 102(g), in which case it would have
fallen under the exemption for commonly owned patents and
applications set forth in 35 U.S.C. § 103(c). We have
carefully considered this argument, and the materials filed in
support thereof. However, the fact remains that, from our
perspective, Kanzelberger constitutes “an application for
patent by another filed in the United States before the
invention thereof by the applicant for patent,” and thus
clearly qualifies as prior art under subsection 102(e).
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