Appeal No. 98-1563 Page 9
Application No. 08/469,198
1. This application complies with the requirements of
35 U.S.C. § 120 and is entitled to the benefit of the filing
date of the original application.
2. The claims on appeal in this application are drawn to
the species of Figure 2, which was a species not elected in
the election/restriction requirement made in the parent
application.
3. The patent issuing on an application with respect to
which a requirement for restriction has been made (i.e., U.S.
Patent No. 5,478,234) cannot be used as a reference against a
divisional application, if the divisional application is filed
before the issuance of the patent on the other application.
While the appellants have designated this application to
be a continuation application, this does not alter the fact
that this application could be and should be designated to be
a divisional application. Thus, we conclude under the facts7
7The appellants should consider amending the designation
of this application from being a continuation application to
being a divisional application.
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