BPAI Board of Patent Appeals and Interferences Patent and Trademark Office (P.T.O.) *1 EX PARTE ALBAN ALBERT, PIERRE COURBAT AND ANDRE WEITH Appeal No. 674-98

Board of Patent Appeals and Interferences

Patent and Trademark Office (P.T.O.)



Appeal No. 674-98

August 17, 1988

HEARD: July 26, 1988



 Application for Patent filed October 12, 1984, Serial No. 660,257; a Continuation of Serial No. 182,169 filed August 28, 1980, Abandoned; a Division of Serial No. 962,743 filed November 21, 1978 now Patent No. 4,255,336. O-Substituted Derivatives of (+)-Cyanidan-3-01.



Irving M. Fishman et al. for appellants



Primary Examiner--Nicky Chan



Before Goldstein, Pellman and Winters












 This appeal is from the examiner's final rejection of claims 4 to 7 and 34. Claims 8 to 25 and 31 to 33 have been withdrawn from further consideration by the examiner under 37 C.F.R. 1.142(b). There are no allowed claims. Illustrative claim 6 is reproduced below.



 6. (+) 3-0-methyl-cyanidan-3-o1.



 The sole reference relied on by the examiner on appeal is:

   Cetta et al. (Cetta), Ital. J. Biochem., 1977, 26(4), pp. 317-327.



 All of the appealed claims have been finally rejected under 35 U.S.C. 102(a) and 35 U.S.C. 103 as being unpatentable over Cetta, as being either anticipated by or obvious from that disclosure. We shall affirm the examiner's rejection of claim 7 under 35 U.S.C. 103 and the rejection of the remaining claims on appeal under 35 U.S.C. 102(a).



 Identical claims were before this Board on appeal of appellants' parent application Serial No. 06/182,169 (Appeal No. 561-99). The issues in the present appeal are virtually identical to the issues in the appeal of the parent application and, in affirming the examiner's rejection, we shall adopt and incorporate by reference our prior decision (Paper No. 18) and add the following comments only for emphasis and amplification.



 The sole difference between the record on this appeal and in the prior appeal is that the evidence concerning the publication date of the reference presented as attorney's arguments in the parent application have been incorporated into a declaration under 37 C.F.R. 1.132 of Fabrizio de Benedetti (Paper No. 22).



 The difference in the nature of the evidence of record adverted to above does not alter the conclusion set forth at pages 2 to 3 of our prior decision. We remain of the opinion that, in the absence of direct evidence from the publisher of the journal attesting to the mailing date and from the Italian Post Office establishing at least an estimated delivery period for mail of the class used, appellants have not carried their burden of proving that the journal was not received by any significant number of subscribers before the critical date. We note that it appears that the examiner has accepted as fact that the issue of the journal in question was not printed until November 10, 1977, and considers that date to be the prima facie publication date as opposed to the nominal July-August, 1977, date on the face of the journal.



  *2 The decision of the examiner is affirmed.



 37 C.F.R. 1.136(a) does not apply to the times for taking any subsequent action in connection with this appeal.









Melvin Goldstein






Irving R. Pellman






Sherman D. Winters





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