Appeal No. 2002-0913
Application No. 09/107,643
application, and that, accordingly, Foreman qualifies as a bar
under 35 U.S.C. § 102(b). On this basis, the examiner takes no
position with respect to the sufficiency of the Tracy I
declaration to swear behind the October 10, 1986 effective filing
date of Foreman. We shall consider both issues of appellant’s
effort to eliminate Foreman as a prior art reference.
Issue (1): Should the appealed claims be accorded the benefit of
the filing date of the ‘681 design application?
Under 35 U.S.C. § 120, a later filed application shall be
accorded the benefit of the filing date of an earlier filed
application if, among other things, the invention (i.e., claims)
of the later application are disclosed in the earlier filed
application in the manner provided by the first paragraph of
35 U.S.C. § 112. Thus, in order for a claim in the later filed
application to be accorded the benefit of the filing date of the
earlier filed application, the earlier filed application must,
among other things, provide descriptive support within the
meaning of 35 U.S.C. § 112, first paragraph, for the claim of the
later filed application. Transco Prods. Inc. v. Performance
Contracting, Inc., 38 F.3d 551, 557, 32 USPQ2d 1077, 1081 (Fed.
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