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[john122]

I have an application that was filed on August 2008 under 35 USC 1.111 and claims priority to a foreign application that was filed on August 2007.

The Examiner rejected the claims under 35 USC 103(a) using the following two references:

-  Reference X was filed in the US on August 2006 and subsequently published on Jan 2007.

-  Reference Y was filed in the US on November 2006 under 35 USC 1.111, and claims priority to a Chinese application (in Chinese language) filed on March 2006.

Based on the prior art dates of Reference X and Reference Y, can they be combined under 35 USC 103 (a)?

Thanks

[JimIvey]

Unless I'm missing something, it seems pretty straight forward.

Reference X is prior art under 102(a) -- published 1/07, prior to 8/07.

Reference Y is prior art under 102(e) -- filed by another (I assume) 11/06, prior to 8/07.

Why wouldn't they be available for 103(a) analysis?

Regards.

[john122]

No, you're right.  I just wanted to verify because the last practitioner argued that Reference Y is not a valid prior art reference (transferred case from another firm).  I also thought I was missing something subtle that I didn't know about.  Thanks for verifying.