Appeal No. 1998-2439
Application 08/495,286
(answer, page 2). That is, “another” means other than
applicants, In re Land, 368 F.2d 866, 875, 151 USPQ 621, 630
(CCPA 1966). Hence, the inventive entity is different if not all
inventors are the same. Therefore, because Murch ‘295 has a
different inventive entity from the inventive entity of the
present application, Murch ‘295 is “by another” under 35 U.S.C.
§ 102(e).
Furthermore, the court in In re De Baun emphasized that
“absent the existence of a time bar to his [applicant’s]
application,” an applicant’s own work may not be used against
him. Id., 214 USPQ at 935. In the instant case, Murch ‘295 is a
continuation-in-part of an application filed on November 1, 1993
and a continuation-in-part of an application filed on April 8,
1994. Appellants have not removed these dates as a possible time
bar to the present application.
In view of the above, we determine that appellants’ above-
mentioned declaration, and appellants’ offer to file a new
continuation-in-part oath/declaration, are unsuccessful
approaches to show that Murch ‘295 is not available as a
reference. In re DeBaun, 687 F.2d 459, 460-463, 214 USPQ 933,
934-936 (CCPA 1982).
Therefore, we determine that appellants have not overcome
any of the 35 U.S.C. § 103 rejections. Accordingly, we affirm
these rejections also.
Should further prosecution continue regarding the present
application, the issue of whether a time bar exists in connection
with the filing dates of November 1, 1993 or April 8, 1994,
discussed supra, may be an issue to be addressed by appellants
and considered by the examiner pursuant In re DeBaun. Id.
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