Appeal No. 2000-1929
Application No. 08/019,297
filed. The rejection of claims 28, 29, 35, 36, and 45-48 for lack of adequate
written description is affirmed.
4. The anticipation rejection
The examiner rejected all of the claims under 35 U.S.C. § 102(b) as being
anticipated by Di Marzo Veronese. The examiner characterizes Di Marzo
Veronese as “disclos[ing] monoclonal antibodies to the major core protein of
HTLV-III. This antigen is the same antigen as Appellant’s [sic] designated p25 of
LAV.” Examiner’s Answer, page 9.
Appellants do not dispute that the products and methods disclosed by Di
Marzo Veronese meet the limitations of the instant claims. Appellants argue,
however, that the reference is not prior art, because the instant application is
entitled to priority under 35 U.S.C. § 120 to a chain of prior applications reaching
back to December 5, 1983. The examiner denied Appellants the benefit of
priority under § 120 on the basis that the previously filed applications did not
provide an enabling disclosure or adequate written description of the instant
claims.
“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.” In re Chu, 66 F.3d 292, 297, 36 USPQ2d 1089,
1093 (Fed. Cir. 1995).
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