Appeal No. 2002-0206
Application No. 09/121,725
First among these arguments, the appellant states that the
EPO has designated the instant reference an “A” reference and
“[t]his is strong evidence that at least one person ‘of ordinary
skill in the art’ recognized the cited reference as not defeating
novelty of the present invention”. (Appeal Brief, page 6, lines
14-16).
This argument is not persuasive as the EPO and the USPTO have
different standards of patentability. The EPO’s Article 54 and 35
U.S.C. § 102(b) are not identical, and the preliminary
determination of the EPO as the International Searching Authority
that a particular reference is background information showing the
state of the art is entitled to little weight, especially when the
scope of the claims of the European Application are not of record
or otherwise known to this board.
Second, the Appellant points to the letter of Dr. Kilgen as
evidence that she did not “question the novelty of the claimed
method.” (Appeal Brief, page 7, lines 2-4). We have reviewed the
document attached as Exhibit A to the Appeal brief and fail to see
where it indicates that either (1) the author was aware of the
disclosure of Yasushi or (2) that she had addressed the issue of
novelty within the meaning of 35 U.S.C. § 102(b). Consequently,
Dr. Kilgen’s letter does not persuade us that the property of
11
Page: Previous 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 Next
Last modified: November 3, 2007