Appeal No. 2004-1142
Application No. 09/892,001
rejection of claims 11 and 19-20 under 35 U.S.C. § 103(a) over Wakat.
B. The Rejection over Wakat in view of Tolchiner
Appellant presents no arguments on the merits concerning the
combination of Wakat and Tolchiner (Brief, page 17).
Accordingly, we adopt the examiner’s findings of fact and
conclusion of law with respect to this rejection (Answer, pages
5-6 and 18).
Appellant’s sole argument against Tolchiner is that this
reference is not available as prior art against the claims on
appeal since appellant should be afforded an effective filing
date of June 25, 1999, for this appealed application (Brief,
pages 15-16). Appellant’s argument is not persuasive for the
following reasons.
Appellant admits that the effective filing date of Tolchiner
is Feb. 24, 2000 (Brief, page 16; see 35 U.S.C. § 102(e)
(11/29/2000) and § 119(e)(1)(11/29/2000)). Appellant attempts to
claim benefit of priority of SN 09/803,463, now U.S. Patent No.
6,289,548 (hereafter the ‘548 patent; Brief, page 15). However,
the ‘548 patent was filed on March 9, 2001 (specification, page
1). Thus, even assuming arguendo that appellant is entitled to
the effective date of the ‘548 patent, the undisputed effective
date of Tolchiner is before appellant’s effective date and
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