Appeal No. 1997-2513
Application No. 08/206,917
The references relied upon by the examiner are:
Valet 4,751,188 Jun. 14, 1988
Brosnan et al. (Brosnan) 4,987,086 Jan. 22, 1991
Schwartz 5,093,234 Mar. 3, 1992
Stewart et al. (Stewart), “Quantitation of Cell Concentration Using the Flow
Cytometer,” Cytometry, Vol. 2, No. 4, pp. 238-43 (1982)
GROUNDS OF REJECTION2
Claims 1-4 stand rejected under 35 U.S.C. § 103 as being unpatentable over
Stewart.
Claims 5, 6 and 8-11 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Stewart in view of Schwartz and Brosnan.
Claim 12 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Stewart in view of Schwartz, Brosnan and Valet.
Claims 1-6 and 8-12 stand provisionally rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claim 48
of co-pending Application No. 08/046,343.3
2 We note the examiner withdrew her final rejections under 35 U.S.C. § 112, first,
second and fourth paragraphs in the Advisory Action, mailed January 27, 1995
(Paper No. 16).
3 We note that Application No. 08/287,759 (‘759) is a file wrapper continuation of
08/046,343, which is a file wrapper continuation of 07/570,569. The ‘759
application issued as United States Patent No. 5,627,037 on May 6, 1997.
Therefore, this obviousness-type double patenting rejection is no longer provisional.
3
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