Appeal No. 1998-0531
Application 08/464,489
(b) a thermally-conductive fluid in the bladder;
(c) an electrical heater within the bladder for heating
the fluid to heat the site to the substantially uniform
temperature; and
(d) insulation on the outer surface for trapping heat
within the fluid when the heater is energized.
The single reference relied upon by the examiner in
support
of the final rejection of claim 28 is:
Feldman et al. 4,201,218 May 6, 1980
Claim 28 stands rejected under 35 U.S.C. § 102(b) as
being anticipated by Feldman.4,5
4 This application contains two examiner’s answers. In
the first answer (Paper No. 12, mailed December 24, 1996) the
examiner maintained the final rejection of claim 28 based on
Feldman and entered a new rejection of claim 28 under the
judicially created doctrine of obviousness-type double
patenting. Following a reply brief by appellants arguing the
new ground of rejection, the examiner issued a second
“supplemental” answer (Paper No. 14, mailed May 5, 1997) which
is essentially a copy of the first answer without the new
ground of rejection. Since no mention of the obviousness-type
double patenting rejection has been made by the examiner in
the second “supplemental” answer, we presume that the examiner
has withdrawn this ground of rejection of claim 28. Ex parte
Emm, 118 USPQ 180, 181 (Bd. App. 1957).
5On pages 6 and 7 of the brief, appellants take issue
with the examiner’s objection to the drawings for allegedly
failing to use correct cross hatching for certain elements of
the invention. Appellants urge us to intervene and resolve
this dispute. We decline to do so. Matters within the
3
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