Nature of the Case
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Facts
P had been in interference with a Habicht application which has matured into the Habicht patent '530, claim 1 of which was the count in the interference. P and Habicht had filed U.S. and foreign 'convention' applications in the following order on the following dates:
Habicht Swiss application Jan. 24, 1957
Hilmer German application July 31, 1957
Habicht U.S. application Jan. 23, 1958
Hilmer U.S. application July 25, 1958
P was accorded the benefit of his German application filing date, as a date of invention, but this was not early enough to overcome the date of Habicht's Swiss filing date, to which he was held to be entitled on the 'priority' issue. P conceded priority of the invention of the count to Habicht. In Hilmer I, the court decided whether the Habicht patent was effective as a prior art reference under Section 102(e) as of the Swiss filing date. We held that it was not and that it was 'prior art' under 102(e) only as of the U.S. filing date, which date P could overcome by being entitled to rely on the filing date of his German application to show his date of invention. On remand, the board's conclusion was that the subject matter of claim 1, the compound claimed, is prior art against P. Two members stated that the statutory basis is §102(g) combined with §119 and read in the light of §104. P appealed.
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