Appeal No. 98-0964
Application 08/557,436
entirely inapposite in this design-utility double patenting
rejection, since the claims of the utility application clearly
could not have been presented in the design application. Thus,
we will not sustain the examiner’s rejection of claims 23
through 34 on this basis.
The last of the examiner’s rejections for our review is
that of claims 23 through 34 under the judicially created
doctrine of obviousness-type double patenting as being
unpatentable over the claim of U.S. Design Patent No. 377,473.
In this instance it
appears that the examiner has attempted to read the first and
second “hatch surfaces” in claim 23 on appeal as merely
surfaces, thereby giving no weight to the specific description
of the surfaces in the claim as “hatch surfaces.” While we agree
that the design patent does show (in Figs. 14 and 16) a planar
surface on each of the three raised cylindrical projections on
the seating deck of the water craft therein, we do not agree
with the examiner’s failure to accord the “hatch surfaces”
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