Appeal No. 2001-1820
Application No. 09/169,280
addition of the pigment to the sol-gel coating. All of
the claims contain the pigment addition limitation,
therefore, the appellant is [sic, appellants are] not
entitled to the filing date of the parent application
[Blohowiak], but is only entitled to the filing date of
the application containing the pigment disclosure.
Appellants are only entitled to the effective filing date of the
parent application (now issued as Blohowiak) under 35 U.S.C.
§ 120 if the subject matter now claimed has support under 35
U.S.C. § 112 in the parent application. See In re Scheiber, 587
F.2d 59, 62, 199 USPQ 782, 784-85 (CCPA 1978). As discussed
above, appellants admit that Blohowiak does not disclose or
suggest inclusion of a pigment in the sol-gel coating (Brief,
page 7; Reply Brief, page 8).2 For the foregoing reasons, we
agree with the examiner that appellants are not entitled to the
effective filing date of Blohowiak and therefore this reference
is available as prior art under 35 U.S.C. § 103(a) via 35 U.S.C.
§ 102(e).
2Claim 24 does not recite inclusion of a pigment in the sol-
gel coating. However, this claim does require that the substrate
is exposed to a space environment and appellants also admit that
this subject matter is not disclosed or suggested by Blohowiak
(Brief, page 7; Reply Brief, page 8). Therefore the subject
matter recited in claim 24 on appeal is also not entitled to the
effective filing date of the parent application (Blohowiak). We
note that appellants do not rely on any other applications to
establish an effective filing date (i.e., parent applications
S.N. 08/742,171, S.N. 08/740,884, S.N. 08/742,170, or provisional
application No. 60/068,715).
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