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.
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