Appeal No. 94-4210
Application 07/932,415
for propriety. The propriety of the obviousness-type double
patenting rejection in this case is not contested. Therefore,
we affirm the examiner's rejection pro forma. Whether the PTO's
refusal to accept appellants' efforts to disclaim any patent
rights to the subject matter claimed in this case which would
extend beyond the patent term of U.S. 5,156,816 was proper is a
petitionable matter for the Commissioner to resolve. See In re
Hengehold, 440 F.2d at 1404, 169 USPQ at 479.
Conclusion
1. The rejections of Claims 10 and 13 under 35 U.S.C. ~ 112,
second paragraph, are reversed.
2. The rejection of Claim 12 under 35 U.S.C. ~ 102(b) as
described by Gross is affirmed.
3. The rejection of Claim 13 under 35 U.S.C. ~ 102(b) as
described by Gross is reversed.
4. The rejection of Claim 14 under 35 U.S.C. ~ 103 as
unpatentable over Gross in view of Carney is affirmed.
5. The rejection of Claim 10 under 35 U.S.C. ~ 102(b) as
described by Wertheim is reversed.
6. The rejection of Claim 11 under 35 U.S.C. ~ 103 as
unpatentable over Wertheim is reversed.
7. The rejection of Claims 10-12 and 14 for obviousness-type
double patenting of Claims 1-5 of Butler is affirmed.
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