Appeal No. 97-2359
Application 07/894,260
we agree with appellants that the rejections under the
judicially created doctrine of obviousness-type double
patenting are not well founded. These rejections therefore
will be reversed.
At the outset, we note that appellants do not include in
their brief a statement that the claims do not stand or fall
together. Thus, the claims within each rejection stand or
fall together and we limit our discussion to one claim to
which each rejection applies, i.e., claims 62 and 66. See 37
CFR § 1.192(c)(7)(1995).
Rejection over Whitehead, Lee ‘904 and Lee ‘492
Whitehead discloses a cluster of inorganic oxide
particles coated with a functionalized organic moiety (col. 7,
lines 17-18; col. 8, lines 65-67). Appellants argue that
Whitehead does not teach or suggest a method for preparing an
inorganic oxide particle having a uniform size distribution
(second amended brief, page 7).
Appellants’ claim 62 does not recite “uniform size
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