Appeal No. 96-3723
Application 08/136,939
slightly crosslinked vinyl...". We fully agree with appellants
position as set forth on pages 48-49 of their substitute brief.
II.
In the double patenting rejection of claims 10-12 over
claims 2-4 of Martin, the examiner urges that "both sets of
claims are drawn to resilient tension floor covering comprising
two foamed thermoplastic layers and an unfoamed thermoplastic
layer between the foamed layers." The examiner's position is
erroneous. As noted by appellants, claims 2-4 of Martin are not
directed to resilient "tension" floor coverings. Claims 2-4 of
Martin do not teach or suggest "tension" floor coverings. We
agree with appellants that the term "tension" floor covering is
entitled to be given patentable weight because it "breathes life
and meaning into the claim." In the supplemental examiner's
answer, the examiner states in response to appellants' arguments
that "the phrase "resilient tension floor is literally recited in
claims 1 and 2" of Martin. As noted, supra, claim 2 of Martin is
not directed to resilient "tension" floors. It is manifestly
improper for the examiner to rely on a limitation in claim 1 of
Martin in an effort to buttress a double patenting rejection over
claims 2-4 of Martin. If it is the examiner's position that
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