Appeal 2007-2074
Application 10/658,863
benefit of the filing date of the 08/504,023 application, the present application
retains the presumption of having an effective filing date of at least July 10, 1997,
i.e., the filing date of 08/889,919, the next earliest-filed application. That filing
date falls between de Keller’s filing date (September 11, 1995) and issue date
(November 2, 1999) and would make de Keller legally available prior art under 35
U.S.C. § 102(e), not § 102(b).
In order for the Examiner to maintain the position that de Keller is legally
available as prior art under 35 U.S.C. § 102(b), the Examiner would have to show
that either the 10/016,436 or the 09/249,118 application does not contain a
disclosure which complies with 35 U.S.C. § 112, first paragraph, for each claim on
appeal. A showing of the former would establish that the present application is not
entitled under 35 U.S.C. § 120 to the benefit of the April 29, 20027 filing date of
the 10/016,436 application for the subject matter of the claims on appeal. A
showing of the latter would establish that the present application is not entitled
under 35 U.S.C. § 120 to the benefit of the February 2, 19998 filing date of the
09/249,118 application for the subject matter of the claims on appeal. In either
case, the result would be that the present application would have an effective filing
date more than one year after de Keller’s issue date of November 2, 1999 for the
subject matter of the claims on appeal, making de Keller legally available prior art
7 See footnote 5. Our analysis remains unaffected if the correct filing date is
November 1, 2001.
8 See footnote 6. Our analysis remains unaffected if the correct filing date is
February 12, 1999.
8
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