Appeal No. 2006-2241
Application No. 09/827,291
With full consideration being given to the subject matter on appeal, the
examiner’s rejection and the arguments of appellants and the examiner, and for the
reasons stated infra we will sustain the examiner’s rejection of claims 1 through 4, 6
through 11, and 13 through 17 under 35 U.S.C. § 103.
Rejection of claims 1, 2, 6 through 11, and 13 through 15.
On pages 8 through 21 of the brief, appellants present arguments directed to claim
1 and the claims grouped with claim 1, claims 2, 6 through 11 and 13 through 15.
Appellants argue, on pages 9 and 10 of the brief, that Pare is not proper prior art, as the
filing date of Pare is June 11, 2001.
The examiner responds, on page 5 of the answer:
[T]he examiner has not relied on the earliest date of the parent application; as it
appears to be the current application is a CIP of the original application filled
[sic, filed] on November 28, 1994. However, the examiner relied on the earlier
date of a direct continuation, which was parent application number 08/705,399
filed on August 29, 1996, now Patent No. 5,870,723, Examiner has reviewed both
the immediate patents of Pare '166 and intervening patent Pare '348 as well as
direct parent Pare '723 extensively and concluded that they are identical in
content and all the portions of the Pare '166 that the examiner has relied on
rejecting the current claims are included in the disclosures of the two immediate
parent applications, which claim priority to August 29, 1996, the date the
examiner has relied on for the rejections.
We concur with the examiner’s determination that Pare is prior art. 35 U.S.C
§ 120 states:
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…, which is filed by an inventor or inventors named in the
previously filed application shall have the same effect, as to such invention, as
though filed on the date of the prior application, if filed before the patenting or
abandonment of or termination of proceedings of the first application or on an
application similarly entitled to the benefit of the filing date filing date of the first
application and if it contains or is amended to contain a specific reference to the
earlier filed application.
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