Appeal 2007-2074
Application 10/658,863
1. Claims 1, 2, 6, 8-11, 15, 18-21, and 24-28 stand rejected under 35 U.S.C.
§102(b) as being anticipated by, or in the alternative, stand rejected under 35
U.S.C. § 103(a) as obvious over de Keller (US Patent No. 5,975,529).
2. Claims 22 and 23 stand rejected under 35 U.S.C. §103(a) as obvious over de
Keller.
3. Claims 3-5, 7, 12-14, 16, and 17 stand rejected under 35 U.S.C. §103(a) as
obvious over de Keller and further in view of Breeding (US Patent No. 5,288,529).
Answer2 3 and Br.3 9.
All the appealed claims have been rejected over at least de Keller. Based on
the statements of the rejections, it appears that the Examiner has taken the position
that de Keller is legally available as prior art under 35 U.S.C. §102(b). De Keller
can only be legally available as prior art under 35 U.S.C. §102(b) if the present
application has an effective filing date that is at least one year after de Keller’s
critical date (i.e., after November 2, 1999, de Keller’s issue date). As we further
explain below, the effective filing date of the present application, and
concomitantly the legal availability of de Keller, requires establishing that the
subject matter of the appealed claims is not entitled to the benefit under 35 U.S.C.
§ 120 of the filing dates of 10/016,436, 09/249,118, 09/170,092, 08/889,919, or
08/504,023.
2 Mailed September 11, 2006.
3 “REPLACEMENT BRIEF ON APPEAL,” filed June 26, 2006.
2
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