Appeal No. 2000-1808
Application No. 07/855,016
Under these circumstances, we concur with the appellants
that the examiner has not established a prima facie case of
obviousness regarding the claimed subject matter. Accordingly,
we reverse all of the aforementioned Section 103 rejections.
However, the examiner’s obviousness-type double patenting
rejection of claims 1 through 4 and 6 through 10 is on different
footing. As is apparent from page 5 of the Brief, the appellants
do not dispute the examiner’s determination that claims 10
through 20 of U.S. Patent 5,491,119 would have rendered the
presently claimed subject matter obvious to one of ordinary skill
in the art. Rather, the appellants state that they have
submitted a terminal disclaimer to overcome the obviousness-type
double
patenting rejection. However, as stated by the examiner, no
terminal disclaimer is recorded or can be found in the present
application.
Under these circumstances, we are constrained to affirm the
examiner’s decision rejecting claims 1 through 4 and 6 through
10 under the judicially created doctrine of obviousness-type
double patenting.
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