Appeal No. 1997-2528
Application No. 07/810,908
An in vitro diagnostic method for detecting the presence
or absence of antibodies, which bind to antigens of Human
Immunodeficiency Virus Type 2 (HIV-2), comprising:
(a) contacting a biological sample with one or more
isolated polypeptide expression products of HIV-2 selected from
the group consisting of p12, polymerase, Q protein, R protein, X
protein, env protein, F protein, TAT, and ART; and
(b) detecting the formation of antigen-antibody complex
between said polypeptide expression products and said
antibodies present in the biological sample.
It is elementary patent law that a patent application is entitled to the benefit of
the filing date of an earlier filed application only if the disclosure of the earlier
application provides support for the claims of the later application, as required by 35
U.S.C. § 112. 35 U.S.C. § 120. In re Van Langenhoven, 458 F.2d 132, 136, 173 USPQ
426, 429 (CCPA 1972); Mendenhall v. Cedarapids Inc., 5 F.3d 1557, 1566, 28
USPQ2d 1081, 1088-89 (Fed. Cir. 1993)("A patentee cannot obtain the benefit of the
filing date of an earlier application where the claims in issue could not have been made
in the earlier application."), cert. denied, 114 S. Ct. 1540 (1994); see also Litton Sys.,
Inc. v. Whirlpool Corp., 728 F.2d 1423, 1438, 221 USPQ 97, 106 (Fed. Cir. 1984)
(discussing filing dates of CIP applications). As to given claimed subject matter, only
one effective date is applicable. Whether or not the requirements of § 120 are satisfied,
including the requirement that the specification comply with § 112, is determinative of
that date. In re Van Langenhoven, 458 F.2d 132, 136, 173 USPQ 426, 429 (CCPA
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