Appeal 2007-2127
Reexamination Control No. 90/006,621
Regardless of what an application is called, there is only priority for
common subject matter actually disclosed in the earlier application. "As far
as the right under the statute is concerned the name used is immaterial, the
names being merely expressions developed for convenience. The statute is
so worded that . . . the second application is entitled to the benefit of the
filing date of the first as to the common subject matter." MPEP § 201.11
(6th ed., Rev. 3, July 1997). "[T]he bottom line is that, no matter what term
is used to describe a continuing application, that application is entitled to the
benefit of the filing date of an earlier application only as to common subject
matter." Transco Products Inc. v. Performance Contracting, Inc., 38 F.3d
551, 556, 32 USPQ2d 1077, 1080 (Fed. Cir. 1994). "A CIP application can
be entitled to different priority dates for different claims. Claims containing
any matter introduced in the CIP are accorded the filing date of the CIP.
However, matter disclosed in the parent application is entitled to the benefit
of the filing date of the parent application." Waldemar Link GmbH & Co. v.
Osteonics Corp., 32 F.3d 556, 558, 31 UPSQ2d 1855, 1857 (Fed. Cir. 1994).
Rather than waste time arguing about whether the '604 patent is
properly characterized as a "continuation" of the '603 patent and the 1982
application, it is best to directly address the question of whether there is
inherent support for "multithreading" in the 1982 application.
3. The 1982 application does not inherently
disclose "multithreading"
a. Editor is not interruptible
The determination that the '604 patent is not entitled to the priority
benefit of the 1982 application is based in part on the finding that the editor
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