Appeal No. 96-0688
Application 08/105,465
re Borah, 354 F.2d 1009, 1010, 148 USPQ 213, 214 (CCPA 1966). On
the facts of the case before us on appeal, we do not see, and the
examiner has not explained, why claims 19 through 29 before us on
appeal would result in an unjustified or improper timewise
extension of the right to exclude granted by U.S. Patent No.
5,285,586, issued February 15, 1994. Thus, for the above reasons,
we will not sustain the examiner's rejection of claims 19 through
29 on appeal based on "non-statutory double patenting."
In summary:
The examiner's rejection of claims 19 through 21 under
35 U.S.C. § 103 as being unpatentable over Dana III in view of
Reichert or alternatively, Reichert in view of Dana III is not
sustained.
The examiner's rejection of claim 22 under 35 U.S.C. § 103,
and that of claims 23 through 29 under 35 U.S.C. § 103 are also
not sustained.
The examiner's rejection 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
is not sustained.
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