Appeal No. 2001-0531 Page 10
Application No. 08/216,592
Thus, the examiner has not disputed the evidence submitted by
Appellants to show conception of the claimed method prior to the effective date
of the reference, coupled with due diligence to the filing of the application five
weeks later. Since Rule 131 expressly allows an applicant to antedate a
reference by showing prior conception coupled with diligence to a later
constructive reduction to practice, the examiner has not carried her burden of
explaining why Appellants’ 131 declarations are insufficient to overcome the
rejections based on Yu. Since Appellants have apparently complied with the
requirements of Rule 131 and effectively removed Yu as prior art with respect to
the instant claims, the rejections based on Yu are reversed.
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