Appeal No. 97-3194 Page 6
Application No. 08/442,816
respective positions articulated by the appellant and the
examiner. As a consequence of our review, we make the
determinations which follow.
The double patenting issue
The appellant has not argued the rejection of claims 3,
4, 6, 9 to 24, 31 to 38 and 44 to 46 under the judicially
created doctrine of double patenting over the claims of
Winner. The appellant has stated in the past (Paper No. 9,
filed June 20, 1996) that he "is fully prepared, upon
allowance of the claims of this application, to file a
Terminal Disclaimer thereby overcoming this non-statutory
objection [rejection]." Since no Terminal Disclaimer has yet
been submitted to overcome this rejection, we summarily
sustain the rejection of claims 3, 4, 6, 9 to 24, 31 to 38 and
44 to 46 under the judicially created doctrine of double
patenting.
The § 103 rejection utilizing Damon
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