Appeal 94-3539
Application 07/655,812
Having considered appellants' briefs, the examiner's
answers, this specification and those of the applications from
which it continues-in-part, the claims on appeal and the subject
matter claimed in the patents issued from parent and grandparent
applications, the cited prior art, all secondary evidence of
record pertaining to patentability of the subject matter claimed,
and the prosecution history, we reverse the examiner's rejections
in their entirety. The greater weight of factual evidence of
record and more convincing arguments support the patentability of
the claimed subject matter. Rather than confront the evidence
and appellants' arguments head on, the examiner resets the basis
for her conclusion that the claimed subject matter is
unpatentable in this case in the fact-specific holding of In re
Durden, 763 F.2d 1406, 226 USPQ 359 (Fed. Cir. 1985). We will
not grace this myopic view of patentability under 35 U.S.C. § 103
with further comment. We reverse.2
REVERSED
2 While the examiner compared the subject matter claimed
in this case to the subject matter claimed in U.S. 4,636,384 for
obviousness-type double patenting, it is not clear from this record
that the subject matter claimed in this case has been compared to the
subject matter claimed in Stolle et al., U.S. 4,748,018, which issued
May 31, 1988, from co-parent Application 06/622,130, filed June 19,
1984.
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