Appeal No. 94-4291
Application No. 07/627,009
USPQ2d 1673, 1681 (Fed. Cir. 1988) (for obviousness under
section 103, all that is required is a reasonable expectation
of success).
For these reasons, we will also sustain the examiner's
obviousness-type double patenting rejection of the appealed
claims over the claims of Boardman in view of Eckberg
considered alone with the respect to independent claim 45 and
considered in combination with Gruber or McDowell with respect
to independent claims 1 and 21.
As a final point of interest, we observe that the
appellants in their brief have stated, "[a]ccording to In re
Braat, 19 U.S.P.Q. 2d 1289 (Fed. Cir. 1991), a "two-way"
determination is necessary in order to sustain a rejection
for obviousness-type double patenting" (brief, page 13).
Nevertheless, the brief contains only the previously discussed
arguments which relate to a "one-way" determination. As a
consequence, even if a "two-way" determination were necessary
in the case before us, the examiner's obviousness-type double
patenting rejection would still be sustained since the only
arguments made thereagainst are limited to a "one-way"
determination and are unpersuasive. In any event, it is plain
10
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