Appeal No. 96-0688
Application 08/105,465
references (Dana III and Reichert). Accordingly, we will likewise
not sustain the examiner's rejections of claims 22 through 29
under 35 U.S.C. § 103, each of which is premised on the
examiner's combination of Dana III in view of Reichert or
alternatively, Reichert in view of Dana III.
Appellant's brief, at page 19, makes reference to a
declaration of commercial success which is said to be "attached"
to the brief. However, we find no such declaration attached to
the brief. Our review of the application file reveals that the
only evidence of commercial success proffered was attached to
Paper No. 13, filed June 13, 1994, and was an "Affidavit of
Commercial Success" signed by the inventor, Carmen C. Rapisarda.
In view of our disposition of the obviousness (§ 103) rejections
above, we find no need to review this secondary evidence of
nonobviousness.
The next rejection posited by the examiner is that of claims
19 through 29 under "the judicially created doctrine of non-
statutory double patenting" as being unpatentable over claims 1-5
of U.S. Patent No. 5,285,586. On page 7 of the answer, the
examiner notes that
[t]he non-statutory double patenting rejection, whether
of the obvious-type or non-obvious-type, is based on a
judicially created doctrine grounded in public policy
(a policy reflected in the statute) so as to prevent
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