Appeal No. 1999-2064 Page 5
Application No. 08/619,853
(Paper No. 29) the examiner stated that the declaration "is
considered irrelevant since applicant can not swear back of a
patent where the same invention is being claimed."
6. The file record of this application indicates that
this panel of the Board issued an order (Paper No. 18, mailed
December 6, 1999) requiring the appellant to clarify the
record by addressing the following issue:
Is the patent to Mowry available as prior art under
35 U.S.C. § 102(e) against claims 29-48 in Application
No. 08/619,853?
In that order the Board required the appellant to either
(1) provide an argument specifying in detail the reasons why
Mowry is not prior art under 35 U.S.C. § 102(e), or
(2) acknowledge that on the current record that Mowry is prior
art under 35 U.S.C. § 102(e) and thus the entire Mowry
reference is available as prior art.
7. The file record of this application indicates that in
the response to the Board's order (Paper No. 19, filed
February 4, 2000) the appellant provided an argument
specifying in detail the reasons why Mowry is not prior art
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