The opinion in support of the decision being entered today was
not written for publication and is not precedent of the Board.
Paper No. 13
UNITED STATES PATENT AND TRADEMARK OFFICE
____________
BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES
____________
Ex parte ALAN S. AMBROSE, JAMES D. FERGUSON, ROBERT LILIENFELD,
MARK J. MCKINLEY and TIMOTHY MISHLER
____________
Appeal No. 1998-1776
Application No. 08/515,438
____________
ON BRIEF
____________
Before CALVERT, McQUADE, and CRAWFORD, Administrative Patent
Judges.
CRAWFORD, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal from the examiner's final
rejection of claims 11, 16, 17, 19 through 24, 26 and 27. 1 The
appellants have not appealed the rejection of claim 25 (brief at
1 The examiner finally rejected claims 11, 16, 17, 19, 21
and 22 through 27 under the judicially created doctrine of non-
statutory non-obviousness type double patenting as being
unpatentable over claims 1 through 7 of U.S. Patent No.
5,458,170. The appellant has offered to file a terminal
disclaimer to overcome the rejection. The examiner has not
repeated this rejection in the examiner’s answer. It is the
appellants understanding that claims 16 and 17 have been amended
by the examiner to depend from claim 27, however, the examiner
has stated that no such examiner’s amendment has been made. The
examiner’s answer does not restate the corresponding 35 U.S.C.
§ 112, second paragraph, rejection of claims 16, 17, 21 and 22.
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