Appeal No. 2006-1279
Application No. 10/249,005
date under 35 U.S.C. § 102(e) is the filing date of the
provisional application if the provisional application
properly supports the subject matter relied upon to make the
rejection in accordance with 35 U.S.C. § 112, first paragraph.
MPEP § 2136.03(III). See also MPEP § 706.02(V)(D).
Once the examiner prima facie established that the Fink
reference qualified as prior art under 35 U.S.C. § 102(e), the
burden then shifted to appellant to show why the reference did
not qualify as prior art under that section (i.e., why the
subject matter relied upon in Fink was not entitled to the filing
date of its underlying provisional application). Apart from
arguing that a copy of the provisional application of Fink was
not provided, appellant did not provide any evidence showing why
the reference was not otherwise entitled to its earlier filing
date. As noted above, the examiner was not required to provide a
copy of the underlying provisional application to establish
Fink's earlier filing date. Accordingly, on the record before
us, the Fink reference is entitled to its earlier filing date and
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