Appeal No. 98-0964
Application 08/557,436
limitation in claim 23 on appeal appropriate weight when making
his obviousness determination. The fact that appellant has
expressly defined the structures in claim 23 as “hatch surfaces”
can not be simply ignored by the examiner, or dismissed as of no
moment. Accordingly, the examiner's rejection of claims 23
through 34 based on the judicially created doctrine of
obviousness-type double patenting will not be sustained.
Given that one of the three rejections posited by the
examiner, i.e., the examiner’s § 102(b) rejection of claims 23
through 34, has been sustained, it follows that the decision of
the examiner to reject claims 23 through 34 on appeal is
affirmed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR §
1.136(a).
AFFIRMED
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