Appeal No. 2004-1142
Application No. 09/892,001
Tolchiner is thus available as prior art against the claims on
appeal. The effective date desired by appellant is June 25, 1999
(Brief, page 16), which is the filing date of grandparent
application SN 09/344,479, now abandoned (specification, page 1).
Although the ‘548 patent is recited as a “continuation” of
application SN 09/344,479 (id.), appellant must establish that
the essential matter (the depth of the central valley being at
least about as great as the height of the pan divider wall) is
found in this grandparent application SN 09/344,479. Appellant
has not met this burden.
Most importantly, appellant must establish that the
essential matter discussed above finds support in accordance with
35 U.S.C. § 112, ¶1, throughout the chain of applications if the
date of the grandparent application is sought. See In re
Schneider, 481 F.2d 1350, 1356, 179 USPQ 46, 50 (CCPA 1973).
Appellant’s reliance on U.S. Patent 5,713,095 (hereafter the ‘095
patent) is misplaced (Brief, page 15). First we note the ‘095
patent was not incorporated-by-reference for the essential matter
discussed above, but was merely cited as an example where a more
complex method of manufacture was used (see the ‘548 patent, col.
5, ll. 49-50, and col. 6, ll. 39-40). There is no teaching in
the ‘548 patent (nor presumably in SN 09/344,479) that the paint
8
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: November 3, 2007