The Cheung patent is a continuation-in-part with a filing date after the filing date of the instant application. The material in Cheung relied on in the rejection to allegedly reject the claims has a priority date after the filing date of the instant application.
The instant application was filed on February 25, 2005. Cheung was filed on Jun 12, 2006, and claims priority through a provisional patent application filed June 10, 2005, after the filing date of the instant application. Cheung also claims priority, as a continuation-in-part, through Patent no. 7,116,976 to Thomas filed Dec. 7, 2004 (Thomas), which, in turn, claims priority through provisional application no. 60/527,565 filed on Dec. 8, 2003 (provisional). A continuation-in-part, by its very nature, adds matter not disclosed in the earlier filing. “A continuation-in-part is an application filed during the lifetime of an earlier nonprovisional application, repeating some substantial portion or all of the earlier nonprovisional application and adding matter not disclosed in the said earlier nonprovisional application.” MPEP 201.08, emphasis in original. The Cheung Patent adds considerable matter not disclosed in the earlier priority documents with the earlier filing dates (Thomas and the provisional), and only receives the priority date for the matter that was present in the priority documents.