Appeal No. 1997-3307
Application No. 08/121,402
case, these patents are “by another” under 35 U.S.C.
§ 102(e). “Another” means other than applicants, In re
Land, 368 F.2d 866, 875, 151 USPQ 621, 630 (CCPA 1966).
Hence, the inventive entity is different if not all
inventors are the same.
Accordingly, in view of the above, we find appellants’
position that Burdick ‘908 and ‘909 and Knechtel cannot be
applied under 35 U.S.C. § 102(e) and under 35 U.S.C. § 103
because of common assignee is incorrect.
Rejection I
Appellant argues that since no claim has been allowed
in the co-pending 08/168,895 application, this rejection is
most. (Brief, page 5). The examiner states that this
rejection “will be held in abeyance until allowable subject
matter in the ‘895 application is indicated.” (Answer,
page 11).
A patent has since issued for co-pending 08/168,895
application (U.S. Patent No. 6,025,311). Because the basis
upon which this rejection was made has changed, we vacate
the decision made by the examiner in this rejection, and
remand to the examiner for further action with respect to
U.S. Patent No. 6,025,311. In re Zamboro,
provide cites for this case It’s a case concerning vacating
decisions, but I could not find it maybe spelling is
slightly off.
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