Appeal No. 96-2391
Application 08/002,286
It is our view, after consideration of the record before
us, that claims 1-20 are not properly rejected on the ground of
obvious double patenting. We are further of the view that the
collective evidence relied upon and the level of skill in the
particular art would not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in
claims 1-20. Accordingly, we reverse.
We consider first the rejection of claims 1-20 on the
ground of obvious-type double patenting as being patentably
indistinct from the claims of Hale. Hale was filed as a
continuation-in-part application of this application on appeal.
The continuation-in-part application added subject matter which
was not disclosed in this application, and the claims of Hale all
recite this additional subject matter. Thus, the difference
between the claims of Hale and the claims of this application is
that the claims of the patent are narrower in that they recite
subject matter in addition to the subject matter of the claims on
appeal.
The examiner has taken the position that since these
claims on appeal are broader than the claims of the patent, these
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