Appeal 2007-3382
Application 10/040,288
The Examiner maintains that Flick ‘946 teaches or fairly suggests the
invention recited in independent claims 1, 16, and 31 (Answer 3-7).
Appellant has not challenged the Examiner’s correlation of the disclosed
elements to the claimed elements. Moreover, the Examiner identifies that
the teachings of Flick ‘946 upon which the Examiner relied upon in the
statement of the rejection can additionally be found in the priority document
09/859,727 originally filed on May 17, 2001, (which is prior to Appellant’s
filing date) and which is now US Patent 6,512,465, which entitles those
same teachings in Flick ‘946 to the earlier priority date (Answer 8-9). We
agree with the Examiner that all the material relied upon in the anticipation
rejection has substantially corresponding subject matter disclosure in the
priority document. Therefore, we find that the Flick ‘964 reference, for the
relied upon subject matter, is entitled to at least the original filing date of
May 17, 2001. Since the date of May 17, 2001, is prior to Appellant’s filing
date, we find that Flick ‘964 qualifies as prior art under 35 U.S.C. § 102(e)
as applied by the Examiner.
We find the Examiner’s reliance upon Flick ‘465 to evidence the
entitlement of Flick ‘964 to the earlier filing date from the CIP filing for the
subject matter relied upon by the Examiner is proper. Additionally, the
Examiner would have been correct to rely upon the teachings of Flick ‘465
in a prior art rejection which clearly has a good date under 35 U.S.C.
§ 102(e) and the same requisite teachings as applied. Therefore, we will
sustain the rejection of independent claims 1 and 16 under 35 U.S.C. § 102
and their corresponding dependent claims.
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