Appeal No. 95-4754
Application No. 08/111,905
patent cited in support of a double patenting rejection cannot
be used as though it were prior art, even where the disclosure
is found in the claims.
See General Foods v. Studiengesellschaft, 972 F.2d 1272, 1281,
23 USPQ2d 1839, 1846 (Fed. Cir. 1992); In re Boylan, 392 F.2d
1017, 1018 n.1, 157 USPQ 370, 371, n.1 (CCPA 1968).
Accordingly, our analysis is limited to a determination of
what has been patented, i.e. the subject matter which has been
protected, not everything one may find to be disclosed by
reading the patent.
The double patenting
rejection has been made over
claim 19 of Yachigo which
depends on the process of claim
1. The product by process claim
19 requires that it be prepared from the process of claim 1
having a phenolic compound represented by the formula:
5
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