Appeal 2007-0512 Application 10/310,744 Some of the procedural history of the prosecution of the application provides helpful context for the issues in this appeal. The application on appeal was filed on 5 December 2002, as a division of original application 09/190,373, which was filed on 12 November 1998, and which had been allowed. On 26 August 2003, U.S. Patent 6,610,159 B2 ("Henegar") was issued to Jeffrey W. Henegar and assigned to BFS Diversified Products, LLC, based on an application filed 27 July 2001. On 17 September 1993, Appellants filed a preliminary amendment adding claims 25-37, drawn to apparatuses; Appellants also filed a petition to make the application special, for rapid processing, alleging commercial sales of devices that would infringe the apparatus claims. In due course, the Examiner issued an action on the merits (20 November 2003, "FAOM"), in which, inter alia, the potential of an interference with Henegar was noted, due to apparently copied claims (FAOM at 3 and 9); and rejections for lack of written description and for anticipation under 35 U.S.C. § 102(e) over U.S. Patent 5,935,357 to Michael J. Hubbard and John Jordan ("Hubbard") were entered. Although the claims have been amended since, the basic issues on appeal were joined at that time. Further prosecution eventually led to the present appeal. B. FINDINGS OF FACT The following findings of fact3 and any set out in the Discussion are supported by a preponderance of the evidence of record. 3 Any conclusions of law should be treated as such. -3-Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 Next
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