Appeal No. 2001-2359 Page 3
Application No. 08/161,194
In reaching our decision in this appeal, we have given careful consideration to
the appellants' specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellants and the examiner.
The examiner has taken the position that the subject matter recited in claim 2 is
anticipated by Blake. The appellants do not dispute this finding, but argue that Blake is
not a proper reference because the present application is entitled to the benefit of the
filing date of Blake. We agree with the appellants.
In the present application, inventors Blake and Nordan claim the benefit of the
filing date of the application which matured into the Blake reference through two jointly
filed intervening applications. There is no dispute that the subject matter recited in
claim 2 is disclosed in the Blake reference; the examiner has cited it as an anticipatory
reference and the appellants have not challenged that finding. The issue before us
therefore is whether the present application can be given the benefit of the filing date of
the Blake patent. In view of the change made in Section 120 by the Patent Law
Amendments Act of 1984, there need not be complete identity of inventorship in order
to be accorded benefit of a prior application. In re Chu, 66 F.3d 292, 297, 36 USPQ2d
1089, 1093 (Fed. Cir. 1995). Thus, since Blake is an inventor common to both the
present application and the Blake patent, the application is not precluded from being
accorded the benefit of the filing date of the Blake patent and, if such date were
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