Appeal No. 1997-2840
Application No. 08/265,971
The appealed claim is rejected under 35 U.S.C. § 103 as
being unpatentable over Japanese ‘724 in view of Nelson,
Greszczuk, Makabe and Lackman.
We refer to the brief and reply brief and to the answer
for a complete exposition of the opposing viewpoints expressed
by the appellant and by the examiner concerning the above
noted rejection.
OPINION
For the reasons set forth below, we cannot sustain this
rejection.
The pivotal determination for this appeal is whether the
appellant has succeeded in antedating the Japanese ‘724
reference via the affidavit under 37 CFR § 1.131 filed January
26, 1996. Further and more specifically, this determination
rests upon whether the aforementioned affidavit is adequate to
establish that the here claimed invention had been reduced to
practice prior to the October 1, 1991 publication date of the
Japanese reference.
In this latter regard, the appellant and the examiner
have differing viewpoints as to the character of the subject
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