Appeal No. 2003-1149 Page 4
Application No. 09/853,540
This also would indicate that the appellant does not dispute the fact that the invention
claimed in the present application is not patentable. Finally, the appellant has argued
that the only rejection that should have been made is that of double patenting under
35 U.S.C. § 101, which implies that, as far as we are concerned, the invention claimed
in the application is not patentably distinct from that claimed in Ross.
The fact is that the only rejection before us is under 35 U.S.C. § 103,3 and it
stands unchallenged by the appellant. This being the case, we shall consider that the
combined teachings of Azar and Ross, and of Zhou and Ross, establish a prima facie
case of obviousness with regard to the subject matter recited in claim 1, and will sustain
the rejection.
CONCLUSION
The rejection of claim 1 under 35 U.S.C. § 103 as being unpatentable over Azar
or Zhou in view of Ross is sustained.
The decision of the examiner is affirmed.
3Under the circumstances , we see no need to comment upon the appellant’s arguments
regarding the propriety of a double patenting rejection under 35 U.S.C. § 101, except to state that it would
appear that the steps set forth in the application claim differ from those recited in the two claims in Ross.
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