Appeal No. 2006-2700
Application No. 10/705,456
with the Examiner’s rationale in support of the rejections and
arguments in the rebuttal set forth in the Examiner’s Answer.
After full consideration of the record before us, we agree with
the Examiner that claims 3, 4, 6 through 8, 10 through 12, and 14
through 17 are properly rejected under 35 U.S.C. § 103 as being
unpatentable over the combination of Shapiro, Fisher and Jones.
We also agree with the Examiner that claims 5, 9, and 13 are
properly rejected under 35 U.S.C. § 103 as being unpatentable
over the combination of Shapiro, Fisher, Jones, Wookey, and Wray.
Additionally, we agree with the Examiner that claims 3 through 21
are properly rejected under the judicially created doctrine of
obviousness double patenting as being unpatentable over claim 1-
15 of copending application 2004/013961. Accordingly, we affirm
the Examiner’s rejections of claims 3 through 21 for the reasons
set forth infra.
I. Under 35 U.S.C. § 103, is the rejection of claims 3, 4, 6
through 8, 10 through 12, and 14 through 17 as being unpatentable
over combination of Shapiro, Fisher and Jones proper?
In rejecting claims under 35 U.S.C. § 103, the Examiner
bears the initial burden of establishing a prima facie case of
obviousness. In re Oetiker, 977 F.2d 1443, 1445, 24 USPQ2d 1443,
1444 (Fed. Cir. 1992). See also In re Piasecki, 745 F.2d 1468,
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