Appeal No. 1997-2878
Application No. 08/287,505
a continuation of an application filed February 4, 1991 which
is a continuation of an application filed August 4, 1989 which
is a continuation-in-part of a design application filed July
5, 1984, under 35 U.S.C. § 120. The examiner contends that
appellant may not rely on this priority date since the design
application does not disclose the invention, as claimed. If
appellant is correct, appellant contends that such a priority
date will effectively remove Hampton as a viable reference and
the examiner’s rejection must be reversed. 1
No distinction between types of applications is made in
35 U.S.C. § 120. Thus, either design or utility applications
may serve as a priority application for the other as long as
all requirements of 35 U.S.C. § 120 are met. Racing
Strollers, Inc. v. TRI Indus., Inc., 878 F.2d 1418, 1421-22,
11 USPQ2d 1300, 1303 (Fed. Cir. 1989). In order for priority
1We note that although the design application does not
have the same inventive entity as the instant application, the
former including Mr. Smith as one of two co-inventors and the
latter having Mr. Smith as the sole inventor, in accordance
with the declaration of Mr. Smith, dated December 30, 1994,
and of record in this application file, the aperture-free
cover disclosed in the design application constituted a
contribution by Mr. Smith. We note that there is no
declaration of record from Mr. Michael A. Savona, the other
co-inventor in the design application.
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