Appeal 2006-0423
Application 10/426,995
1 o Michelson’s spinal rod (Michelson, Fig. 3:50), as a link member that
2 precludes movement, is not capable of facilitating a limited degree of
3 movement of the device (FF 09).
4 The Examiner’s contentions are essentially the same as in the rejections under
5 Doty and our findings are therefore the same. Accordingly we do not sustain the
6 Examiner's rejection of claims 1-4, 6 and 7 under 35 U.S.C. § 102(b) as anticipated
7 by Michelson.
8
9 Claims 1-4 and 7-9 provisionally rejected under the judicially created doctrine of
10 obviousness-type double patenting as claiming obvious subject matter over claims
11 5 and 8 of copending Application No. 10/754,042.
12 The Appellant did not raise this as an issue for appeal. Accordingly we sustain,
13 pro forma, the Examiner's provisional rejection of claims 1-4 and 7-9 under the
14 judicially created doctrine of obviousness-type double patenting as claiming
15 subject matter that would have been obvious to one of ordinary skill in the art over
16 the subject matter of claims 5 and 8 of copending Application No. 10/754,042.
17 DECISION
18 To summarize, our decision is as follows:
19 • The rejection of claims 1-5 and 7-9 under 35 U.S.C. § 102(b) as anticipated
20 by Doty is not sustained.
21 • The rejection of claims 1-4, 6 and 7 under 35 U.S.C. § 102(b) as anticipated
22 by Michelson is not sustained.
23 • The provisional rejection of claims 1-4 and 7-9 under the judicially created
24 doctrine of obviousness-type double patenting as claiming subject matter
8
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