Appeal 2007-0841
Application No. 10/823,849
requirement of extending back reference filing dates under §102(e). Nothing
in §119(e)(1) expressly or even implicitly overturns the binding precedent.
It is tempting to say that Wertheim was wrong to import a but-for
requirement into §102(e) or that subsequent amendments to §102(e) have
eviscerated Wertheim. The time to make those arguments, however, is when
the rejection is made. On the present record, the '121 provisional application
does not appear to be available to back-date the Yang published application.
The Yang published application is not sufficiently early to anticipate on its
own. Consequently, we have no proper prior art for the §102(e) rejection.
REVERSED
hlj
KEITH M. TACKETT
PATTERSON & SHERIDAN LLP
3040 POST OAK BLVD., SUITE 1500
HOUSTON, TX 77056
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