Appeal No. 1995-4535
Application No. 07/955,116
disclosed in the respectively applied patents and is covered
by the broad claims in the issued patents.
Appellants point out in their “brief in reply” that none
of the claims in either Bland’019 or Bland’842 fully cover the
subject matter of the appealed claims which require a tear
resistant film or tear resistant film component to include at
least three stiff and ductile layers while the patented claims
require the same tear resistant film component as including
more than five stiff and ductile layers.
Thus, as argued by appellants, the factual situation in
this appeal differs significantly from the circumstances
present in Schneller. While the herein appealed claims and
patented claims may cover overlapping subject matter in terms 2
of the number of layers required, the patented claims do not
2The examiner should revisit the question of whether an
obviousness-type double patenting rejection is applicable
under the circumstances presented here. In this regard , the
examiner may wish to review the genus-species guidelines (MPEP
§ 2144.08 July 1998) concerning the issue regarding the herein
claimed ductile sebacic acid based copolyester ductile film
component which is covered by patented claims to ductile film
copolyester component. See, for example, claim 14 of
Bland’019.
6
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