Appeal 2007-2074
Application 10/658,863
cannot be legally available as prior art under 35 U.S.C. § 102(b) as long as the
present application is entitled to the benefit claimed under 35 U.S.C. § 120 of the
filing dates of 10/016,436, 09/249,118, 09/170,092, 08/889,919, and 08/504,023.
If the Examiner shows that the present application is not entitled to the benefit
claimed under 35 U.S.C. § 120 of the filing dates of 10/016,436, 09/249,118,
09/170,092, 08/889,919, and 08/504,023, the Examiner will have shown that the
present application has an effective filing date (September 9, 2003) that is more
than one year after de Keller’s issue date and will have supported the premise
underlying the prima facie cases of unpatentability that de Keller is legally
available as prior art under 35 U.S.C. § 102(b).
Entitlement to the benefit of filing dates of earlier applications is contingent
on satisfying the conditions set forth in 35 U.S.C. § 120:
Benefit of earlier filing date in the United States
An application for patent for an invention disclosed in the manner
provided by the first paragraph of section 112 of this title in an
application previously filed in the United States, or as provided by
section 363 of this title, which is filed by an inventor or inventors
named in the previously filed application shall have the same effect, as
to such invention, as though filed on the date of the prior application,
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. No application shall be entitled to the
benefit of an earlier filed application under this section unless an
amendment containing the specific reference to the earlier filed
application is submitted at such time during the pendency of the
application as required by the Director. The Director may consider the
failure to submit such an amendment within that time period as a waiver
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Last modified: September 9, 2013