Federal Circuit disposition — 25-1192

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
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IN RE: ROBERT BENSON AYLOR, I, LEIGH
HEATHER MAKOVER, ROBYN AYLOR HAINES,
Appellants
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2025-1192
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Appeal from the United States Patent and Trademark
Office, Patent Trial and Appeal Board in No. 15/950,246.
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Decided: September 8, 2025
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ROBERT B ENSON AYLOR, I, Blue Ash, OH, pro se.
L EIGH HEATHER MAKOVER , Mt. Horeb, WI, pro se.
ROBYN AYLOR HAINES , Franklin, TN, pro se.
K AKOLI CAPRIHAN , Office of the Solicitor, United States
Patent and Trademark Office, Alexandria, VA, for appellee
Coke Morgan Stewart. Also represented by MICHAEL S.
F ORMAN, M ONICA BARNES L ATEEF , AMY J. NELSON.
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Case: 25-1192 Document: 34 Page: 1 Filed: 09/08/2025

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IN RE: AYLOR 2
Before M OORE, Chief Judge, CHEN, Circuit Judge, and
ANDREWS , District Judge.1
P ER CURIAM .
Appellants Robert B. Aylor, L. Heather Makover, and
Robyn A. Haines appeal a decision from the Patent Trial
and Appeal Board (the “Board”). We have jurisdiction pur-
suant to 28 U.S.C. § 1295(a)(4)(A).
BACKGROUND
Appellants are the inventors of U.S. Patent Application
No. 15/950,246 (the “’246 application”). The Examiner re-
jected the pending claims of the ’246 application as antici-
pated or obvious in light of Appellants’ prior patent
applications (the “Aylor references”). Appellants argued
they submitted an Application Data Sheet (“ADS”) with the
’246 application claiming priority from the Aylor refer-
ences, which prevents them from being used as prior art
against the ’246 application claims. The Examiner deter-
mined Appellants did not properly submit or amend the
ADS. The Examiner maintained the rejections.
Aylor appealed to the Board. The Board affirmed the
Examiner’s rejections. The Board also issued two new re-
jections: an anticipation rejection for some claims and an
obviousness rejection for other claims. Appellants re-
quested a rehearing, which the Board denied. This appeal
followed.
Appellants raise four issues on appeal: (1) whether the
Board properly affirmed the Examiner’s rejection over the
Aylor references, (2) whether the Board properly issued
new rejections, (3) whether the Board’s new rejections are
supported by substantial evidence, and (4) whether
1 Honorable Richard G. Andrews, District Judge,
United States District Court for the District of Delaware,
sitting by designation.
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IN RE: AYLOR 3
Appellants are entitled to a patent term adjustment and
costs in light of a supposedly premature notice of abandon-
ment. We reach only the first and fourth issues.
L EGAL STANDARD
We may set aside the Board’s actions if “arbitrary, ca-
pricious, an abuse of discretion, or otherwise not in accord-
ance with law.” 5 U.S.C. § 706(2)(A). “We review the
Board’s factual findings for substantial evidence and re-
view its legal conclusions de novo.” In re Cuozzo Speed
Techs., LLC, 793 F.3d 1268, 1280 (Fed. Cir. 2015) (citing In
re Baxter Int’l, Inc., 678 F.3d 1357, 1361 (Fed. Cir. 2012)).
“Determination of a patent’s priority date is purely
a question of law if the facts underlying that determination
are undisputed.” Medtronic CoreValue, LLC v. Edwards
Lifesciences Corp., 741 F.3d 1359, 1363 (Fed. Cir. 2014)
(citing E.I. du Pont de Nemours & Co. v. MacDermid Print-
ing Sols., LLC, 525 F.3d 1353, 1359 (Fed. Cir. 2008)).
D ISCUSSION
Appellants do not challenge that the ’246 application
claims are anticipated by or obvious in light of the Aylor
references, if the Aylor references are prior art. Appellants
argue the Aylor references are not prior art because the
’246 application claims priority from them. The underlying
facts concerning priority are not in dispute, so we review
the Board’s decision de novo.
A U.S. patent application can claim priority from an
earlier-filed U.S. patent application to gain the benefit of
the earlier-filed application’s priority date. 35 U.S.C. § 120.
Several requirements must be met to gain this benefit, one
of which is the later-filed application must “contain a spe-
cific reference to the earlier filed application.” Id. Under
the regulations, a patent application must provide “the ap-
plication number, the filing date, the status (including pa-
tent number if available), and relationship of each
application for which a benefit is claimed.” 37 C.F.R.
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IN RE: AYLOR 4
§ 1.76(b)(5). This information must be submitted as part of
the ADS. Id. § 1.76(a); id. § 1.78(d)(2). The claim for priority
must “be submitted within the later of four months from
the actual filing date of the later-filed application or six-
teen months from the filing date of the prior-filed applica-
tion.” Id. § 1.78(d)(3)(ii). If the deadline to file an ADS
claiming priority has passed, an applicant may file a peti-
tion with an ADS, certifying that “the date the benefit
claim was filed was unintentional.” Id. § 1.78(e).
Appellants filed the ’246 application on April 11, 2018.
See SAppx. 72.2 Appellants included an ADS with the filing
and attempted to claim priority from earlier-filed applica-
tions. The ADS included the earlier-filed applications’ pub-
lication numbers, but it did not have their application
numbers. See SAppx. 36. In a filing receipt sent on May 8,
2018, Appellants were notified that no priority was claimed
and were directed to the relevant regulations. SAppx. 72.
Appellants filed a replacement ADS on May 21, 2018, but
it too did not include the application numbers. SAppx. 215,
221. Appellants received an updated filing receipt on May
24, 2018, again stating that no priority was claimed and
directing Appellants to the relevant regulations. SAppx.
226. Appellants took no further steps to correct the ADS.3
“Section 120 places the burden on the patent owner to
provide a clear, unbroken chain of priority.” Droplets, Inc.
v. E*TRADE Bank, 887 F.3d 1309, 1317 (Fed. Cir. 2018)
(citing Medtronic, 741 F.3d at 1366). We have previously
declined to adopt an exception to the requirements under
section 120 and the regulations for a “hypertechnical viola-
tion” in claiming priority. Droplets, 887 F.3d at 1316. The
2 “SAppx.” refers to the supplemental appendix filed
by the government.
3 According to the Board, Appellants’ deadline to sub-
mit a proper ADS was August 13, 2018. Appellants do not
dispute this.
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IN RE: AYLOR 5
regulations require that Appellants provide, in the ADS for
a patent application, the application numbers for all patent
applications from which the pending application claims
priority. 37 C.F.R. § 1.76(a); id. § 1.76(b)(5). Appellants
failed to meet that requirement. Thus, the Board properly
affirmed the Examiner’s use of the Aylor references as
prior art.
Appellants request a ruling that a notice of abandon-
ment issued by the Patent Office was improper. After the
notice of abandonment issued, Appellants filed a petition
to revive the application, which the Patent Office granted.
SAppx. 640–41. The revival moots the need for the re-
quested ruling. Appellants also request a patent term ad-
justment based on the purportedly improper notice of
abandonment. Patent term adjustments apply only to is-
sued patents. See 35 U.S.C. § 154(b). No patent has issued
from the ’246 application. And any challenge to a patent
term adjustment decision must be brought in the Eastern
District of Virginia. Id. § 154(b)(4)(A). We lack jurisdiction
over the abandonment and patent term adjustment issues.
Appellants also request costs associated with filing the
petition to revive their application. Appellants cite no au-
thority showing they are entitled to such costs, or that they
requested the costs from the Patent Office or the Board.
Since Appellants have offered nothing in support of their
argument, it is forfeited and the request is denied.
CONCLUSION
For the reasons stated above, we affirm the Board’s re-
jection of the ’246 application claims. We dismiss Appel-
lants’ request for a patent term adjustment and ruling that
the notice of abandonment was improper.
AFFIRMED IN PART AND DISMISSED IN PART
COSTS
No costs.
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