Ex parte FEIST - Page 4




          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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