Appeal No. 96-2528
Application 08/011,202
Turning initially to the obviousness double patenting
rejection, the examiner correctly points out at the top of
page
2 of the answer that appellants’ brief does not contest this
rejection. This observation has been confirmed at page 1 of
the reply brief where appellants have indicated that the
obviousness-
type double patenting rejection has not been argued. In
considering the statements made at page 1 of the reply brief,
appellants do not contest in any manner the propriety of the
rejection. The apparent basis of that position is that there
are no allowed claims in the referenced application. This
view is misplaced since the rejection is a provisional
rejection as stated by the examiner. The essential position
as set forth by the examiner of page 7 of the answer, that the
claims are not patentably distinct, has gone unrebutted by
appellants in the brief and reply brief. Therefore, we
sustain the rejection. Note also Ex parte Karol, 8 USPQ2d
1771, 1773-74 (Bd. Pat. App. & Inter. 1988).
Turning next to the rejection of claims 1-4 under the
second paragraph of 35 U.S.C. § 112, we will sustain this
4
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