Appeal No. 96-3404
Application 08/145,775
in the answer. As a consequence of this review, we will
sustain
the rejection of claims 1, 2, 11 and 12 under the judicially
created doctrine of obviousness-type double patenting, the
rejection of claim 1 under 35 U.S.C. § 102(e) and the various
rejections of claims 2-6 and 8-16 under 35 U.S.C. § 103. We
will not, however, sustain the rejection of claim 7 under 35
U.S.C.
§ 103. Additionally, pursuant to our authority under the
provisions of 37 CFR § 1.196(b), we will enter a new rejection
of claim 7 under 35 U.S.C. § 112, second paragraph.
Considering first the rejection of claims 1, 2, 11 and 12
under the judicially created doctrine of obviousness-type
double patenting, the appellant’s sole response to this
rejection is that “[a]pplicant offered a terminal disclaimer
to avoid” this rejection (see brief, page 8). The record dos
not show that a terminal disclaimer has in fact been filed
and, since the appellant has not presented any arguments as to
why the examiner’s position might be in error, we will sustain
the rejection of claims 1, 2, 11 and 12 based on the
judicially created doctrine of obviousness-type double
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