Appeal No. 97-1057
Application 08/160,298
set forth in claims 1-3, 9-13, 39, 42-44, 50-54, 80 and 83-97.
We reach the opposite conclusion with respect to claims 16-27,
34, 36-38, 40, 41, 57-68, 75, 77-79, 81 and 82. Accordingly,
we affirm.
We consider first the provisional rejection of claims
1-27, 29-68 and 70-97 on the judicially created doctrine of
obviousness-type double patenting as being unpatentable over
claims 1-93 of copending application Serial No. 08/160,111.
According to the examiner, the only difference between the
claims of this application and the claims of the copending
application is the recitation of a barrel rotator in the
claims of the copending application in place of the shifter
recited in the claims in this application. The examiner
provides a reason as to why it would have been obvious to the
artisan to use a shifter in place of the claimed barrel
rotator of the copending application [answer, pages 3-4].
Appellants’ only response to this rejection is to
indicate that the rejection should be held in abeyance until
all other issues have been resolved in accordance with the
procedure of MPEP § 804 [brief, page 4]. The section of the
MPEP referred to by appellants merely provides guidance to the
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