Appeal No. 1995-4122
Application No. 08/067,647
Appellant requests rehearing of our decision mailed
November 9, 1998, affirming the examiner’s rejection of claims
29 through 47 under the judicially created doctrine of
obviousness-type double patenting as unpatentable over the
claims of U.S. Patent 5,242,608. Appellant, however, does not
assert any points believed to have been misapprehended or
overlooked by us in rendering our decision. See 37 CFR §
1.197(b)(1998). Rather, appellant relies on for the first
time the terminal disclaimer filed on March 22, 1999 to
overcome the obviousness-type double patenting rejection in
question. However, the newly proffered terminal disclaimer is
not properly before us since it was not considered by the
examiner and was not the basis of any argument in appellant’s
original brief. See 37 CFR § 1.192(a)(1998). We will not
decide the merits of the terminal disclaimer in the first
instance.
According to a decision on the petition dated June 1,
1999, the Director of Technology Center 1700 granted, inter
alia, appellant’s request of entry of the terminal disclaimer
in question. See Paper No. 22. We, therefore, remand this
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