Appeal 2006-1776
Application 10/075,976
FACTS
The Appellant does not contend that the combination of second Lively
application and Acker, as applied, fails to describe all of the subject matter of the
rejected claims at issue or fails to render the subject matter of claims 1 and 8
unpatentable under 35 U.S.C. § 103(a).
The Appellant does not contend that Acker is not prior art, but only that Acker
alone is insufficient to reject the claims.
The Appellant does not contend the portions of Lively relied upon in the new
rejection are not sufficiently supported by its parent application.
The Appellant does not contend that the claimed invention of Lively is not
sufficiently supported by its parent application.
Lively filed application 09/538,612 on Mar. 29, 2000 (first Lively application).
The Appellant filed the application on appeal (10/075,976) on Feb. 14, 2002.
The application on appeal does not claim the benefit of an earlier filing date
under 35 U.S.C. §§ 119, 120, 121, or 365.
Lively filed continuation-in-part application 10/098,033 on Mar. 14, 2002
(second Lively application), claiming the benefit under 35 U.S.C. § 120 of the first
Lively application.
The first Lively application became abandoned due to a failure to respond to a
final rejection mailed October. 18, 2002. Thus, the two Lively applications were
co-pending.
The second Lively application was published on July 11, 2002, as a U.S. patent
application publication [Document 2002/0090240 A1] under 35 U.S.C.
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