Appeal No. 2003-0574
Application No. 09/568,616
The Examiner’s rejection is premised on the same basis presented in the rejection
under section 112 discussed above. As we stated above, the subject matter of claims 13
and 22 is directed to a containment structure. The disputed language of claims 13 and 22
defines the location of a layer that has impedance matching characteristics relative to the
flywheel that is being contained by the claimed invention.
The third sentence of 35 U.S.C. 121 prohibits the use of a patent issuing on an
application with respect to which a requirement for restriction has been made as a
reference against any divisional application, if the divisional application is filed before
the issuance of the patent. The Examiner has not argued that the present application was
not timely filed. Thus, we reverse the Examiner’s rejection.
CONCLUSION
The Examiner’s rejections of claims 13, 14, 20, 22, 23 and 27 under 35 U.S.C.
§ 112, second paragraph; claims 11 to 14, 19 and 21 to 23 under 35 U.S.C. § 102 (b)
as anticipated by Murray; claims 13, 14, 20, 22, 23 and 27 under the judicially
created doctrine of obviousness-type double patenting over claims 1 to 9 of Smith are
reversed. We also reverse the Examiner’s § 103 rejection of claims 13, 14, 20, 22, 23
and 27. However, we affirm the Examiner’s § 103 rejection of claims 11, 12, 15-17,
19, 21, 24-26.
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