Appeal No. 95-0084
Application 07/857,329
5,019,359 and 5,039,495. The examiner's response thereto on page
5 of the answer reflects that he has relied upon teachings from
the disclosures of these patents to supply the deficiencies of
the patent claims. This reliance is clearly improper as
explained, for example, in M.P.E.P. § 804, particularly at page
800-18 (Revision 3, July 1995) (“When considering whether the
invention defined in a claim of an application is an obvious
variant of the invention defined in the claim of the patent, the
disclosure of the patent may not be used as prior art”).
Because the examiner has set forth no acceptable reasoning
much less evidence as to why the here claimed subject matter
would have been obvious over the subject matter defined by the
claims of the previously mentioned patents, his rejection of the
claims on appeal under the judicially created doctrine of
obviousness-type double patenting cannot be sustained.
SUMMARY
Under the circumstances recounted above, none of the
rejections advanced by the examiner on this appeal can be
sustained.
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