Appeal No. 2001-2646 Page 14
Application No. 08/463,951
patentably distinct from the issued species claims. We therefore affirm the
examiner’s rejection for obviousness-type double patenting.
Summary
We agree with the examiner that instant claims 7-9, 20, 21, 28-30, 36, 39,
49-51, 57-59, 61, 62, 64, and 65 are not patentably distinct from the claims of the
‘009 patent; we therefore affirm the rejection for obviousness-type double
patenting. However, the examiner has not adequately shown that practicing the
instant claims would have required undue experimentation and we therefore
reverse the rejection under 35 U.S.C. § 112, first paragraph. As a result, claims
10-19, 31-35, 37, 38, 40-42, 52-56 are not subject to any outstanding rejection.
AFFIRMED IN PART
Sherman D. Winters )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
William F. Smith )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
Eric Grimes )
Administrative Patent Judge )
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