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In re Hilmer (Hilmer I)
Court of Customs and Patent Appeals
359 F.2d 859 (C.C.P.A. 1966)
Hilmer (applicant) filed a patent application that was rejected by the patent examiner as obvious. The rejection was based on two patent references, one having been filed in the U.S. prior to Hilmer’s application, but the other (the Habicht patent) having filed in the U.S. after Hilmer’s filing date. The Habicht patent, however, relied upon a foreign-filed patent application (the Switzerland application) for priority. The Switzerland application’s filing date pre-dated Hilmer’s application filing date. Hilmer appealed the examiner’s decision to the Patent Office Board of Appeals, which upheld the rejection, holding that a U.S. patent is prior art as of its foreign filing date. The Board’s decision was based on 35 U.S.C. §119, which permits a patent application to claim a foreign priority date. Thus the Board held that the Habicht patent was entitled to the Switzerland application’s filing date, which predated Hilmer’s priority date. Hilmer appealed.
Rule of Law
Holding and Reasoning (Rich, C.J.)
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