Appeal No. 94-1707
Application 07/345,622
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stating the rejection on pages 4-5 of the Examiner’s Answer, the examiner determined
that the process claimed in the ‘927 patent uses as one of the starting materials a
“triglyceride” while the corresponding starting material in the process claimed in this
application is “marine oil.” Having made that determination, the examiner concluded that
this “starting material [marine oil] is different in degree, it does not differ in kind.” Perhaps
understanding that more than that statement was needed to establish that the claimed
process in this application is an obvious variation of that claimed in the ‘927 patent, the
examiner went on to explain in the paragraph bridging pages 4-5 of the Examiner’s
Answer why the newly cited reference to Yongmanitchai supports his position. However,
the examiner, in citing Yongmanitchai at page 3 of the Examiner’s Answer, expressly
stated that the “reference is relevant but not relied upon.” To be fair to applicant, we will
take the examiner at his word when he states that Yongmanitchai is “not relied upon.” The
examiner’s conclusion of obviousness reached in this rejection is bereft of factual support.
Accordingly, we reverse the obviousness-type double patenting rejection.
4The Examiner’s Answer is incorrectly paginated. Our reference to page numbers
in the Examiner’s Answer is based upon an assignment of the number 1 to the first page of
the document with subsequent pages being assigned the next higher positive integer. The
document consists of 19 pages.
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