Appeal No. 2007-0111
Reexamination 90/006,297
1 foreign filing date under 35 U.S.C. § 119.”); In re Gosteli, 872 F.2d 1008, 1011, 10
2 USPQ2d 1614, 1616 (Fed. Cir. 1989) (“[I]f the effective filing date of what is
3 claimed in a United States application is at issue, to preserve symmetry of
4 treatment between sections 120 and 119, the foreign priority application must be
5 examined to ascertain if it supports, within the meaning of section 112, ¶1, what is
6 claimed in the United States application.”). This includes the written description
7 requirement. Id., 872 F.2d at 1010-11, 10 USPQ2d at 1616. The burden of
8 establishing entitlement to the filing date of a previously filed foreign application
9 is on the applicant. In re Ziegler, 992 F.2d at 1200, 26 USPQ2d at 1603.
10 In this case, the patentees have failed to meet their burden of establishing
11 entitlement to an earlier filing date of a foreign application sufficient to antedate
12 Vandenberg. As found by the Board in Ex parte Natta, Appeal No. 89-1569, slip.
13 op. at 3-4, Italian application 24227 relates to the polymerization of propylene to
14 form highly crystalline propylene polymers. (See Certified English translation of
15 24227 filed on May 22, 1959 in 03/514,097, page 3.) At best, the ’227 Italian
16 application discusses the presence of ethylene only in the context of “[s]mall
17 amounts” that do not inhibit propylene polymerization. For example, in discussing
18 the catalyst composition, the ’227 application states: “[N]ot all the starting agents
19 indicated by Ziegler for the production of high polymers of ethylene are effective
20 for the polymerization of ethylene-free propylene.” (Translation at 2.) Further, in
57
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