Appeal No. 1999-2064 Page 6
Application No. 08/619,853
under 35 U.S.C. § 102(e). Specifically, the appellant argues
that Mowry is not claiming "the same patentable invention" as
the claims under appeal.
8. The file record of this application indicates that
this panel of the Board issued a remand (Paper No. 20, mailed
March 7, 2000) requiring the examiner to specifically identify
each provision of 35 U.S.C. § 102 that the examiner is
applying Mowry as prior art. In addition, if the examiner was
relying on
35 U.S.C. § 102(e) as a basis for applying Mowry as prior art,
we required the examiner to set forth factual evidence
establishing that Mowry is claiming "the same patentable
invention" as the claims under appeal.
9. The file record of this application indicates that in
the answer (Paper No. 21, mailed April 13, 2000) responding to
the Board's remand the examiner states (p. 6) that Mowry is
prior art under 35 U.S.C. § 102(e) and 35 U.S.C. § 102(g). In
addition, the examiner asserts (p. 6) that the factual
evidence to establish that Mowry is claiming "the same
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