Appeal No. 1997-2246
Application 08/353,572
challenged the examiner’s decision not to grant priority to
application 06/802,844, filed November 27, 1985, still remains
not-entered today. This fact supports the examiner’s view.
The appellants have not shown that the examiner had
previously granted appellants’ application priority to a date
as early as November 27, 1985. Even if the examiner had
previously granted priority to such an early date, it is clear
that the examiner has withdrawn that alleged accordance of
benefit. Consequently, the effective date of the appellants’
application is May 25, 1990, a time not prior to the filing
date of the Schwendeman reference.
For the foregoing reasons, The Schwendeman reference has
not been antedated by the appellants by way of a Rule 1.131
affidavit.
Conclusion2
2There is no occasion for us to discuss the examiner’s
statement in Paper No. 21, page 2: “[I]t appears that an
interference cannot be declared because the claims were not
presented within 1 year after the date on which the patent
issued (MPEP 2306).” We do not review a recommendation by an
examiner on whether an interference should be declared. A
rejection of claims under 35 U.S.C. § 135(b) has not been made
and is not before us. However, in that connection, it should
be noted that in discussing the appellants’ reliance on a Rule
1.131 affidavit we have held that the examiner has not shown
that the Schwendeman reference claims the same patentable
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