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).
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