Appeal 2007-1335
Application 10/449,558
Can the disclosure of the claimed invention in a previously filed U.S.
application, which was co-pending with the instant application at issue in
this appeal and which shares the same inventive entity with it, be used to
antedate a reference under 37 C.F.R. § 1.131 as a constructive reduction to
practice of the claimed invention, even though the instant application has not
been accorded the benefit of the previously filed application under 35 U.S.C.
§ 120?
FINDINGS OF FACT
1. U.S. Ser. No. 07/174,246 (“the ‘246 Application”) was filed on March
28, 1988.
2. The ‘246 Application issued as U.S. Pat. 5,102,417 (“the ‘417 Patent”) on
April 7, 1992.
3. Julio C. Palmaz and Richard A. Schatz are joint inventors2 of the ‘417
Patent.
4. U.S. Ser. No. 07/253,115 (“the ‘115 Application”) was filed on Oct. 4,
1988.
5. U.S. Ser. No. 10/449,558 (“the ‘558 Application”), the application at
issue in this appeal, claims the benefit under 35 U.S.C. § 120 of the ‘115
Application (Specification 1 (as amended in Paper No. 2 dated Sept. 5,
2003).
2 Richard A. Schatz was added as a joint inventor by Certificate of
Correction pursuant to a Petition under 35 U.S.C. § 1.16 and 37 C.F.R.
§ 1.48(a) (‘417 Patent, Petition filed Sept. 8, 1989).
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