Appeal 2007-2399
Application 10/896,417
one at a time, back to an earlier filed application;1 the earliest filed
application properly claims the benefit of Reinert ‘362 and Reinert ‘201.
Appellant does not cite any authority, and we know of none, for according
benefit based on a series of nested claims2 to an earlier filed patent
application, where the full chain is not explicitly referenced in any one
application, let alone in the application for which benefit of the earlier filing
dates is asserted.
Appellant also asserts that his application is entitled to the filing date
of the earlier filed applications because a statement3 was submitted during
prosecution which traced its priority back to Reinert ‘362 and Reinert ‘201
(Br. 13). 35 U.S.C. § 120 is explicit: a later filed application is entitled to
“benefit of the filing date of the first application . . . if it contains or is
amended to contain a specific reference to the earlier filed application.” In
1 For example, as explained on pages 11-12 of the Brief:
1) U.S. Pat. No. 6,572,240, specifically referenced on page 1 of the
instant application, is stated on its cover page to be a continuation-in-part of
U.S. Ser. No. 09/514,089, filed Feb. 28, 2000, now U.S. Pat. No. 6,196,697;
2) U.S. Pat. No. 6,196,697 is stated on its cover page to be a
continuation-in-part of U.S. Ser. No. 09/118,980, filed on Jul. 10, 1998, now
U.S. Pat. No. 6,033,083;
3) U.S. Pat No. 6,033,088 is stated on its cover page to be a
continuation-in-part of U.S. Ser. No. 08/687,809, filed July 26, 1996, now
U.S. Pat. No. 5,779,349; and
4) U.S. Pat. No. 5,779,349 is stated on its cover page to be a
continuation-in-part of Reinhart ‘362 and Reinhart ‘201.
2 Like a set of Russian dolls of graduated size, each encased inside the next
larger doll.
3 Appellant states that the statement was submitted on Oct. 21, 2004 (Br.
13). We could not find a paper filed on that date which describes the
priority tree of the instant application. However, we do find such a
statement made in a paper filed Jan. 17, 2006.
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