Appeal No. 94-2153
Application 07/333,362
Subsequent to that decision, the examiner reopened prosecution, apparently on
his own authority. See Paper No. 13, May 1, 1992. As set forth in the Manual of
Patent Examining Procedure (MPEP) § 1214.04, Examiner Reversed (6th Edition,
Rev. 3, July 1997):
If the examiner has specific knowledge of the existence of a particular
reference or references which indicate nonpatentability of any of the
appealed claims as to which the examiner was reversed, he or she should
submit the matter to the group director for authorization to reopen
prosecution under 37 CFR 1.198 for the purpose of entering the new
rejection. Note MPEP § 1002.02(c), item 2, and MPEP § 1214.07. The
group director’s approval is placed on the action reopening prosecution.
This record does not indicate that the group director authorized the examiner to reopen
prosecution. Rather than remand the application to the examiner to follow proper
procedure, in the interest of administrative economy, we have proceeded to decide the
issues presented in this appeal.
2. Obviousness
Having considered the record in this application, we reverse the prior art
rejection for the reasons set forth in the Appeal Brief.
3. Obviousness-tyoe Double Patenting
Appellants were aware of the obviousness-type double patenting rejection prior
to the filing of the Appeal Brief. See page 6 of Paper No. 18, July 29, 1993, wherein
appellants stated that they would “consider timely filing of a terminal disclaimer . . .
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