Ex Parte RUSSO et al - Page 19

              Appeals 2006-2874 and 2006-2747                                                        
              Applications 08/544,212 and 09/287,664                                                 
              Patent 5,401,305                                                                       
          1   D.  Findings of fact on obviousness                                                    
          2         The following findings are believed to be supported by a                         
          3   preponderance of the evidence.                                                         
          4                                                                                          
          5                        Examiner's obviousness rejection                                  
          6         In Appeal 2006-2747, the Examiner also rejected claims 28-32 as                  
          7   being unpatentable under 35 U.S.C. § 103(a) over the prior art.                        
          8         In particular, the Examiner rejected claims 28-32 as being                       
          9   unpatentable over (1) Lagendijk (U.S. Patent 5,028,566) in view of                     
         10   (2) Gordon (U.S. Patent 4,308,316).                                                    
         11         Gordon is prior art under 35 U.S.C. § 102(b), having issued more than            
         12   one year prior to the filing date of the application which matured into the            
         13   patent sought to be reissued.                                                          
         14         Lagendijk is prior art under 35 U.S.C. § 102(b) vis-à-vis the filing             
         15   date of the application which matured into the patent sought to be reissued.           
         16   Appellants also claim benefit under 35 U.S.C. § 120 of two earlier                     
         17   applications, the earliest of which was filed on 27 December 1991.                     
         18   Assuming without deciding that Appellants are entitled to an effective filing          
         19   date of 27 December 1991, Lagendijk is nevertheless prior art under                    
         20   35 U.S.C. §102(e).  The filing date of the application which matured into the          
         21   Lagendijk patent was filed on 27 July 1990.  Appellants have made no                   
         22   attempt to antedate Lagendijk.  Accordingly, for the purpose of deciding this          
         23   appeal, Lagendijk is prior art.                                                        
         24         The Examiner also observed—correctly—that the prior art relied upon              
         25   is "representative of a large body of art disclosing CVD [chemical vapor               



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