Appeal No. 2003-2079
Application No. 09/207,972
§ 103(a) as unpatentable over Kizilyalli ‘238 in view of Wu and
Chou (id.). We reverse both of the examiner’s rejections on appeal
essentially for the reasons stated in the Brief and Reply Brief and
those reasons set forth below. Furthermore, we remand this
application to the jurisdiction of the examiner for action
consistent with our remarks below.
OPINION
The examiner presents findings of fact and conclusions of law
regarding Kizilyalli ‘238, Wu and Chou on pages 4-5 of the Answer.
Appellants do not contest these findings or conclusions (see the
Brief and Reply Brief in their entirety). The sole argument
advanced by appellants is that the primary reference to Kizilyalli
‘238 “does not qualify as prior art” (Brief, pages 4-5; Reply
Brief, pages 2-3). As noted by appellants, Kizilyalli ‘238 was
filed on June 25, 1999, after the filing date of this application
(Dec. 9, 1998), and is only available as prior art if the ‘238
patent is accorded the effective filing date of its parent, the
Kizilyalli ‘435 application, filed on Dec. 22, 1997 (id.).
The examiner states that Kizilyalli ‘238 “has an effective
filing date of December 22, 1997.” Answer, page 5. The initial
burden of establishing a prima facie case of obviousness, and thus
establishing that the reference applied is available as prior art,
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