Appeal No. 94-3726
Application 07/978,531
(Fed. Cir. 1985).
Claims 7 through 12 of O'Connor are directed to the
second embodiment of the process of O'Connor, with claim 14
directed to the product produced by the process of claim 7.
Claims 1 through 5 of Anderson are directed to the second
embodiment of the process disclosed by Anderson. Although
Anderson does not claim the product of the process of claims
1-5, the resulting product of Anderson's process would be
indistinguishable from the here claimed product since the
process steps are essentially the same as in appealed claim 1,
as discussed above.
As noted above, the analysis of obviousness-type double
patenting parallels the obviousness determination outlined
above for the rejection under 35 U.S.C. § 103, except that the
claims of the earlier filed patents form the basis for the
obviousness determination. The claims of O'Connor set forth
the same process as in appealed claim 1 except that the5
cooling step is not specifically recited. However, O'Connor
5 It should be noted that he term "plastisol" in claim 7
of O'Connor refers to a mixture of a heat swellable resin and
a carrier (see column 2, lines 35-38).
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