Appeal 2007-1335
Application 10/449,558
“crowning step” (a “constructive reduction to practice”) which confers the
same status on the invention as if it had been actually reduced to practice.
Euth v. Oliver, 70 F.2d 110, 114, 21 USPQ 230, 234 (CCPA 1934).
Constructive reduction to practice is typically invoked during
interferences between two or more parties where it may be an element of
establishing priority to a claimed invention. According to its definition in
the interference rules:
Constructive reduction to practice means a described and
enabled anticipation under 35 U.S.C. 102(g)(1) in a patent
application of the subject matter of a count. Earliest
constructive reduction to practice means the first constructive
reduction to practice that has been continuously disclosed
through a chain of patent applications including in the involved
application or patent. For the chain to be continuous, each
subsequent application must have been co-pending under 35
U.S.C. 120 or 121 or timely filed under 35 U.S.C. 119 or
365(a).
37 C.F.R. § 41.201.
In turn, 35 U.S.C. § 120 states that the benefit of a previously filed
application is accorded
if filed before the patenting or abandonment of or termination
of proceedings on the first application or on an application
similarly entitled to the benefit of the filing date of the first
application and if it contains or is amended to contain a specific
reference to the earlier filed application.
Thus, under 37 C.F.R. § 41.201, a constructive reduction to practice
of a previously filed application only benefits a later filed application if the
applications were copending and the previously filed application is
specifically referenced in the later filed application. This definition is
6
Page: Previous 1 2 3 4 5 6 7 8 9 10 11 Next
Last modified: September 9, 2013