Appeal No. 97-2610
Application 08/236,809
none of the applications includes a terminal disclaimer.
Thus, depending on the scope of the claims, the potential
certainly exists for one or more of the applications on
appeal, if allowed, to provide an unjustified timewise
extension of the right to exclude granted by a patent maturing
from any of the other applications.
The appellants’ brief (see pages 18 through 20) contains
a tabular summary of the scope of the respective sets of
claims involved in the double patenting issue presented in
this appeal. This summary, and our own review, indicate that
the claims in the instant application, if allowed, would not
result in any timewise extension of the right to exclude
afforded by the claims in Applications 08/236,838, 08/236,835
and 08/236,069 (Patent No. 5,577,963). The examiner’s
determination to the contrary as set forth in the answer is
fundamentally flawed in that it fails to take into account the
subject matter as a whole recited in these claims.
Accordingly, we shall not sustain the examiner’s double
patenting rejection of claims 1 through 10.
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