Appeal No. 2004-2239
Application No. 09/975,417
date under 35 U.S.C. § 120 as to the appealed claims, we
reverse.
A principal question in this appeal is whether the examiner
has adequately established that the subject matter of the
appealed claims is not entitled to benefit of an earlier filing
date under 35 U.S.C. § 120 such that Gapinski is available as
prior art under 35 U.S.C. § 102(e). We do not think that the
examiner’s position is supported by substantial evidence.
The present application is a continuation-in-part (CIP)
application of prior application 09/360,561 (’561 application)
filed on May 26, 1999, now abandoned, which in turn is a CIP of
prior application 08/923,022 (’022 application) filed on Sep. 3,
1997, now abandoned. (Present specification at 1; “Combined
Declaration and Power of Attorney” filed on Oct. 10, 2001.)
Gapinski’s application, on the other hand, was filed more than
six months after the filing date of the ’022 application, i.e.,
on Mar. 18, 1998.
35 U.S.C. § 120 reads as follows:
An application for patent for an invention
disclosed in the manner provided by the first
paragraph of section 112 of this title in an
application previously filed in the United States, or
as provided by section 363 of this title, which is
filed by an inventor or inventors named in the
previously filed application shall have the same
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