Appeal 2007-2003
Application 09/726,589
1 must disagree with the Examiner. The Patent Office requires a “two way” test in
2 the context of interfering subject matter. See Winter v. Fujita, 53 USPQ2d 1234,
3 1243 (Bd. Pat. App. & Int. 2000) and Eli Lily & Co. v. Bd. of Regents of Univ. of
4 Washington, 334 F.3d 1264, 1268, 67 USPQ2d 1161, 1163-64 (Fed. Cir. 2003).
5 This two way unpatentability test has been codified in 37 C.F.R. § 41.203(a).
6 Nothing in the claims of Sander would have anticipated or rendered obvious the
7 stacked limitation argued by Appellants and found in the claims on appeal.
8 Accordingly, the two way test is not satisfied in this instance, and Appellants
9 cannot be held to be claiming interfering subject matter under 37 C.F.R. § 1.131.
10 CONCLUSION
11 For the foregoing reasons, Appellants have failed to antedate the filing date
12 of the applied Sander prior art. Accordingly, we hold that Sander anticipates
13 Appellants’ claims on appeal. The rejection of the Examiner is affirmed.
14 No time period for taking any subsequent action in connection with this
15 appeal may be extended under 37 C.F.R. § 1.136(a)(1)(iv) (2006).
16 AFFIRMED
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24 Crowell & Moring LLP
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25 Intellectual Property Group
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27 P.O. Box 14300
28 Washington, DC 20044-4300
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