Appeal No. 2000-0872
Application No. 08/852,119
appellant and the examiner. As a consequence of our review, we
will reverse the anticipation rejections of claims 1 through 21,
23 through 35, 37 through 41, 43 through 47, and 49, and the
obviousness rejections of claims 36, 42, and 48.
Appellant relies on affidavits under 37 C.F.R. § 1.131 and
1.132 to overcoming the rejections under 35 U.S.C. §§ 102 and
103. In a Remand to the examiner dated March 26, 2001 (Paper
No. 33), we asked the examiner to determine whether or not
appellant and Ross, the patentee of both patents used in the
rejections, are claiming the same patentable invention, as
defined in 37 C.F.R. § 1.601(n). The examiner complied, stating
in the Response to Remand dated September 11, 2003 (Paper No. 40)
that appellant and Ross are not claiming the same patentable
invention. Thus, no interference exists. Further, the examiner
determined that the patents were filed less than one year prior
to the earliest date to which the claimed subject matter is
entitled. Accordingly, there is no bar under 35 U.S.C. § 102(b).
The examiner admitted, therefore, that appellant can swear back
of the patents via an affidavit under 37 C.F.R. § 1.131.
Appellant filed a Rule 131 Affidavit on July 19, 1999. The
examiner (Answer, page 14) recognizes that 37 C.F.R. § 1.131
requires that "[o]riginal exhibits of drawings or records, or
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