Appeal No. 1996-0332
Application No. 08/075,017
decided has not been properly introduced as evidence for
consideration on appeal (see the discussion, supra, relating
to declaration (2)).
In concluding, we note that appellants’ counsel at oral
hearing expressed a willingness to file a terminal disclaimer
in the instant application relative to the claims in
appellants’ Patent No. 5,534,482. Since, we are affirming the
examiner’s rejection under 35 U.S.C. § 103, we see no need at
this time to apply a new ground of rejection under 37 CFR §
1.196(b). However, in the event of any future prosecution of
the present claim, for example as in a continuing application,
the examiner should consider the imposition of an obviousness-
type double patenting rejection. Of course, such a rejection
could be overcome by a terminal disclaimer.
For the foregoing reasons, the decision of the examiner
is affirmed based upon the provisions of 35 U.S.C. § 103.
AFFIRMED
MARC L. CAROFF )
Administrative Patent Judge )
)
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