Appeal No. 1997-3307
Application No. 08/121,402
IV. Claims 1-5 stand rejected as unpatentable under
35 U.S.C. § 103 over Bürge.
V. Claim 6 stands rejected as unpatentable under
35 U.S.C. § 103 over Bürge in view of Knechtel.
VI. Claims 1-6 stand rejected under 35 U.S.C.
§ 102(e)/§ 103(a) as obvious over Knechtel.
Before reaching the teachings of the applied art, we
note the appellants argue that the Burdick ‘908 patent, the
Burdick ‘909 patent, and the Knechtel patent cannot be
applied under 35 U.S.C. § 102(e) or 35 U.S.C. § 103 because
the case on appeal and each of these patents where the same
assignee, Aqualon Company. (Brief pages 5, 7, and 8).
The examiner states that because these patents have
different invention entities, these patents are “by
another”.
Paragraph (e) of 35 U.S.C. § 102 was amended by the
American Inventors Protection Act of 1999. The new
criterie for determining patentability under post-AIPA
102(e) applies to applications: (a) filed on or after
November 29, 2000, or (b) that have been voluntarily
published. Appellants’ application was filed on September
14, 1993, and appellants have not indicated that their
application was voluntarily published. Hence, post-AIPA
§ 102(e) does not apply to the present case. Hence,
subject matter that qualifies as prior art under 35 U.S.C.
§ 102(e) can be applied in a rejection under 35 U.S.C.
§ 103(a). Because the applied patents have different
inventive entities from the inventive entity of the present
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