Appeal No. 2004-1608
Application 09/752,873
rejection. Appellant reiterates his position that the use of the
Ayukawa publication is procedurally defective [reply brief, page
1].
We disagree with appellant’s position that the Ayukawa
publication is not entitled to the filing date of the grandparent
application. We have before us the situation where a published
United States patent application relies on a chain of United
States continuing applications resulting from an international
application filed on February 17, 1997. This situation is
covered in the Manual of Patent Examining Procedure (MPEP) at
section 1896 in the section entitled “References That Resulted
From, or Claimed Benefit of, an International Application.”
Since the international application was filed before November 29,
2000 and the published application claims priority benefits under
35 U.S.C. § 120, section (C)(3) of MPEP § 1896 applies. Section
(C)(3) states the following:
For U.S. application publications of
applications that claim the benefit under 35
U.S.C. 120 or 365(c)of an international
application filed prior to November 29, 2000,
apply the reference under 35 U.S.C. 102(e) as
of the actual filing date of the later-filed
U.S. application that claimed the benefit of
the international application.
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