Appeal No. 97-1504
Application No. 08/400,190
It therefore is our conclusion that the combined
teachings of Wagai and Levine fail to establish a prima facie
case of obviousness with regard to the subject matter of
independent claims 1, 7, 12, 15 and 21 and, it follows, of
dependent claims 2, 3, 8, 13-15, 19, 20, 25 and 26.
Dependent claims 4, 5, 9-11, 16-18 and 22-24 stand
rejected under the judicially created doctrine of obviousness-
type double patenting as being unpatentable over claims 1-19
of U.S. Patent No. 5,398,022, taken in view of Wagai and
Levine. According to the examiner, “the appellant has already
received a patent for the limitations of claims 4, 5, 9, 10,
16, 17, 22, and 23 in claims 1-19 of . . . [the patent]” and
“to include the steps of claims 1-3, 7-8, 12-15, and 18-21, in
the method of the claimed invention of . . . [the patent]
would have been obvious to one of ordinary skill in the art”
in view of Wagai and Levine because they “suggest such method
limitations are known in the art” (Answer, paragraph bridging
pages 5 and 6).
The referenced patent claims are directed to a method of
actuating a switch to illuminate the display of a pager and to
cause other functions to take place concurrently, and thus
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