Appeal No. 1999-1400
Application No. 08/849,211
Appealed claims 1 and 3-6 stand rejected under 35 U.S.C.
§ 102(e), and under 35 U.S.C. § 103(a), as being unpatentable
over Reierson.
The Reierson patent relied upon by the examiner has a
filing date of March 6, 1995. The application which matured
into the
Reierson patent was a continuation-in-part of U.S. Serial
No. 220,069, filed March 30, 1994, now abandoned. The
threshold issue on appeal is whether the examiner properly
relied upon the filing date of Reierson's parent application,
March 30, 1994, as the effective date of Reierson as a
reference under 35 U.S.C. § 102(e). Manifestly, the filing
date of the Reierson patent, March 6, 1995, renders the patent
ineffective as a reference under 35 U.S.C. § 102(e) against
the present application, which has an effective filing date of
December 9, 1994.
As accurately pointed out by appellants, and not refuted
by the examiner, the patented claims of Reierson recite two
limitations that are narrower than the subject matter
disclosed in Reierson's parent application, namely, (1)
exclusively reacting phosphoric anhydride and phosphoric acid,
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