Appeal No. 1997-3342
Application No. 08/389,086
examiner. As a consequence of our review, we make the
determinations which follow.
The appellant argues that the reference to Vandemoortele
is not prior art. Specifically, the appellant urges that the
affidavit of Barry R. Feist (the Feist affidavit) is3
sufficient under 37 CFR § 1.131 to antedate the reference to
Vandemoortele. We agree for the reasons set forth below.
Since Vandemoortele is not prior art to the claims under
appeal, it follows that the decision of the examiner to reject
claims 1 and 2 under 35 U.S.C. § 102(a) and claims 3 through 9
under 35 U.S.C. § 103 is reversed.4
The Feist affidavit does establish completion of the
article shown on page 42 of Exhibit A in this country before
the publication date of the Vandemoortele reference.
The examiner considered the Feist affidavit to be
insufficient for the following reasons.
First, the examiner considered that the Feist affidavit
did not establish reduction to practice of the article shown
See the affidavit attached to Paper No. 15, filed May 10, 1996.3
The present application was filed on February 14, 1995, as a4
continuation under former 37 CFR 1.62, based on prior application No.
08/071,899, filed on June 3, 1993.
4
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