Ex parte CASTEL et al. - Page 7




                 Appeal No. 96-1830                                                                                                                     
                 Application 08/101,668                                                                                                                 


                 23 under the judicially created doctrine of obviousness-type                                                                           
                 double patenting as being unpatentable over claims 1 through 3                                                                         
                 of the Castel patent, the appellants have not disputed the                                                                             
                 merits of such rejection and have offered to file a terminal                                                                           
                 disclaimer to obviate same (see pages 11 and 12 in the main                                                                            
                 brief).   Under these circumstances, we shall summarily5                                                                                                                         
                 sustain the standing obviousness-type double patenting                                                                                 
                 rejection of claims 1 through 5 and 23.                                                                                                
                          In summary and for the above reasons, the decision of the                                                                     
                 examiner to reject claims 1 through 5 and 23 is reversed with                                                                          
                 respect to the 35 U.S.C.  102(e) rejection and affirmed with                                                                          
                 respect to the obviousness-type double patenting rejection.                                                                            







                          No time period for taking any subsequent action in                                                                            
                 connection with this appeal may be extended under 37 CFR                                                                               


                          5The examiner has indicated that a terminal disclaimer                                                                        
                 would indeed overcome the rejection (see page 3 in the                                                                                 
                 answer).                                                                                                                               
                                                                         -7-                                                                            





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