Ex Parte ALIZON et al - Page 8




              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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