Appeal No. 1998-2598
Application No. 08/549,078
According to information on the front page of Butts ‘231, the patent is a continuation
of Ser. No. 923,361, filed Jul. 31, 1992, abandoned, which is a division of Ser. No.
698,734, filed May 10, 1991, abandoned, which is a continuation-in-part of Ser. No.
1
417,196, filed Oct. 4, 1989, U.S. Patent No. 5,036,473 , which is a continuation-in-part of
Ser. No. 254,463, filed Oct. 5, 1988, abandoned.
Appellant indicates (Brief at 14) that U.S. Patent 5,036,473 (hereinafter, Butts ‘473)
“contains the disclosure” of Butts ‘231. Appellant further indicates (id. at 14-15) that
application Ser. No. 254,463, of which Butts ‘473 is a continuation-in-part, is unavailable
from the USPTO and has been placed on official search. Appellant contends that the
earliest effective filing date that can be established for Butts ‘473 is Oct. 4, 1989.
Appellant concludes that Butts ‘231 has been removed as a reference by an affidavit filed
in the instant application, pursuant to 37 CFR § 1.131, which swears behind the date of
Oct. 4, 1989.
The examiner responds (Brief, page 8):
The application [Ser. No. 245,463] has now been found by the Office. The
Examiner asserts that relevant sections of Pat. No. 5,452,231 [Butts ‘231]
are sufficiently taught in Ser. No. 07/254,463. Therefore, in order for the
Rule 131 Affidavit to be effective, the Appellant must swear behind the date
of Oct.5, 1988.
1Although not indicated on the face of the Butts ‘231 patent, U.S. Patent 5,036,473 issued Jul. 30,
1991.
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