Appeal No. 2004-0140
Application No. 10/154,729
provisional application. The Examiner determined that the claims of this
application are not entitled to the benefit of provisional application Serial No.
60/110,765, under 35 U.S.C. § 120 because that application purportedly does not
disclose the subject matter now claimed in the manner provided by 35 U.S.C. § 112,
first paragraph. (Answer, p. 3).
The issue to be resolved in this appeal is whether the claims on appeal are
entitled to the benefit of the filing date of the provisional application Serial No.
60/110,765 under 35 U.S.C. § 120.3 We conclude that substantial evidence does not
support the conclusion that the provisional application 60/110,765 specification
meets the written description requirement relative to claims 27 to 34 of the present
application. Thus, we agree with the Examiner’s determination that the claims on
appeal are not entitled to the benefit of the earlier filing date of the provisional
application under 35 U.S.C. § 120.
The relevant portions of the provisional application 60/110,765 appear
below:
General Purpose of the Intention:
To make a target for sputtering in an OEM system that is easier to
handle and reduces cost of ownership to the customer. By replacing
3 The Appellants have failed to provide a substantive discussion of the technological
merits of the cited references.
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