Appeal 2006-1776
Application 10/075,976
PRINCIPLES OF LAW
The applicable statutory law regarding the status of Lively as prior art is
(1) 35 U.S.C. § 103(a) (2004)
A patent may not be obtained though the invention is not identically
disclosed or described as set forth in section 102 of this title, if the
differences between the subject matter sought to be patented and the
prior art are such that the subject matter as a whole would have been
obvious at the time the invention was made to a person having
ordinary skill in the art to which said subject matter pertains.
Patentability shall not be negatived by the manner in which the
invention was made.
and (2) 35 U.S.C. § 102(e) (2004)
(e) the invention was described in - (1) an application for patent,
published under section 122(b), by another filed in the United States
before the invention by the applicant for patent or (2) a patent granted
on an application for patent by another filed in the United States
before the invention by the applicant for patent, except that an
international application filed under the treaty defined in section
351(a) shall have the effects for the purposes of this subsection of an
application filed in the United States only if the international
application designated the United States and was published under
Article 21(2) of such treaty in the English language . . . [emphasis
added].
and (3) 35 U.S.C. § 120 (2004)
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 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 on the first application or on an application
similarly entitled to the benefit of the filing date of the first
application and if it contains or is amended to contain a specific
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