Appeal No. 98-1604
Application 08/354,539
Claims 16, 18, 20-24, 27-32 and 34-40 stand rejected
under "the judicially created doctrine of double patenting"
over claims 1-21 of the appellant's copending application
Serial No. 08/197,610.5
Claims 16, 18-25 and 27-40 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Yamada in view of Ascari.
Claim 26 stands rejected under 35 U.S.C. § 103 as being
unpatentable over Yamada in view of Ascari and Japanese abstract.
The rejection based on double patenting is explained on
pages 2 and 3 of the final rejection. The rejections under 6
§ 103 are explained on pages 4-6 of the answer. The arguments of
the appellant and examiner in support of their respective
positions may be found on pages 4-8 of the brief and pages 6 and
7 of the answer.
5The examiner failed to include this rejection in the
listing of the grounds of rejection which are "applicable" to the
appealed claims in the answer, it appears from the examiner's
comments in the paragraph bridging pages 2 and 3 of the answer,
that the examiner did not intend to withdraw the final rejection
of claims 16, 18, 20-24, 27-32 and 34-40 on this ground.
Although not stated to be such, it is apparent that this is a
provisional rejection.
6Although it is not entirely clear from the examiner's
cryptic explanation, the examiner appears to have intended that
the rejection be a provisional obviousness-type double patenting
rejection (as distinguished from a provisional statutory double
patenting rejection).
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