Appeal No. 98-1207 Page 5
Application No. 08/420,648
Given that no terminal disclaimer has as yet been filed
by the appellant, it is our determination that the double
patenting rejection made in the first Office action is before
us in this appeal. Since the appellant has not argued this
rejection in the brief and no terminal disclaimer has yet been
submitted to overcome this rejection, we summarily sustain the
rejection of claims 17 through 41 under the judicially created
doctrine of double patenting.
We denominate our affirmance of this ground of rejection
a new ground of rejection under 37 CFR § 1.196(b) since the
examiner failed to specifically include this ground of
rejection in the final rejection.
The indefiniteness rejection
In the final rejection (p. 2), the examiner rejected
claims 25 through 31 under 35 U.S.C. § 112, second paragraph,
as being indefinite for failing to particularly point out and
distinctly claim the subject matter which the appellant
regards as the invention.
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