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 8Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 NextLast modified: November 3, 2007