Appeal No. 94-1775
Application 07/488,513
Tolstoshev or Tripier. In addition, claims 1, 5 through 14 and 18 are provisionally rejected
under the judicially created doctrine of obviousness- type double patenting as unpatentable
over claim 16 of copending application 07/700,997 in view of Chang and further in view of
Brake, Edens, Kramer and Derynck. Finally, claims 1, 5 through 14 and 18 are
provisionally rejected under 35 U.S.C. § 103 as obvious over copending application
07/700,997 in view of Chang and further in view of Brake, Edens, Kramer and Derynck.
We vacate the two provisional rejections based upon application 07/700,997. We
also vacate the obviousness rejection premised in part upon Chang as it pertains to claims
1 and 5 through 16 and reverse this rejection as it pertains to claim 18. We also make a
new ground of rejection under the provisions of 37 CFR § 1.196(b).
PROVISIONAL REJECTIONS
Each of these rejections is premised upon application 07/700,997 which now
stands abandoned. However, that application was refiled as application 08/121,974 which
issued as U.S. Patent 5,422,249. Since the underlying premise of the two provisional
rejections, application 07/700,997 is now abandoned, any issues regarding the
patentability of the claims pending in this application on the basis of the claims then
pending in that abandoned application are moot. Accordingly, we vacate the two
provisional rejections. Upon return of the application, the examiner should consider the
`249 patent and determine whether the now issued patent adversely affects the
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