Appeal No. 94-1707
Application 07/345,622
The examiner also cites the following reference as “relevant but not relied upon”:
Yongmanitchai et al. (Yongmanitchai), “Omega-3 Fatty Acids: Alternative Sources of
Production,” Process Biochemistry, vol. 24, pp. 117-124 (1989).
Finally, the examiner cites a “new reference” for the purpose of reinforcing
“arguments that certain facts are old and well known in the art”:
Pavia et al. (Pavia), “Introduction to Organic Laboratory Techniques a Contemporary
Approach,” W. B. Saunders Co., pp. 482-484 (1982).
Claims 12 through 19 and 29 through 31 stand provisionally rejected under the
judicially created doctrine of obviousness-type double patenting as unpatentable over the
claims of co-pending Application 07/942,476. Claims 12 through 19 and 29 through 31
stand rejected under 35 U.S.C. § 112, first paragraph, as being non-enabled. Finally,
claims 12 through 19 and 29 through 31 stand rejected under 35 U.S.C. § 103 as
unpatentable over Lazar in view of Choo, Sunazaki, Gancet, Borgstrom, and further in view
of the Chemical Abstract citation, Tanaka, Mendy, Rubin and Markley.
We reverse the rejections based upon obviousness-type double patenting and lack
of enablement and vacate the rejection under 35 U.S.C. § 103. We remand the
application to the examiner for further consideration.
OBVIOUSNESS-TYPE DOUBLE PATENTING REJECTION
The referenced co-pending application issued as U.S. Patent No. 5,316,927 (‘927
patent). Thus, the obviousness-type double patenting rejection is no longer provisional. In
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