Appeal No. 95-1484
Application 08/070,650
Furthermore, the examiner should not only consider
whether the subject matter of Claims 67 and 68 is unpatentable
for obviousness-type double patenting of the subject matter
claimed in Ben-Bassat, U.S. 5,144,021, patented September 1,
1992, but also whether Claim 68 should be rejected under 35
U.S.C. § 101 as drawn to the same invention as the claims of
the patent. As for the existing appeal, we affirm the
obviousness-type double patenting rejection of Claims 67 and
68 in view of the subject matter claimed in U.S. 4,863,565.
3. § 102 or 103 over Ring, Valla, Kusakabe or Ramamurti
First, we note that Ring, Valla and Kusakabe are all
included as References Cited on the face of Ben-Bassat, U.S.
5,144,021. Ramamurti’s teaching stands on no better footing.
Therefore, the subject matter claimed in the patent, namely:
1. A reticulated cellulose product characterized
as having a reticulated structure and having strands of
cellulose that interconnect forming a grid-like pattern
extending in three dimensions to give a fenestrated
appearance when viewed with a scanning electron
microscope
. . . [;]
is presumably patentable over the disclosure of Ring, Valla,
or Kusakabe, or in view of the teaching of Ring, Valla, or
Kusakabe. Consequently, the examiner’s action in this case
appears to be inconsistent with the previous determination.
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