Appeal No. 1996-3816 Page 8
Application No. 08/293,331
1252, 1255, 195 USPQ 430, 433-434 (CCPA 1977). In this
regard, we also determine that the term "about" utilized by
appellant in his claims to describe the temperature range to
which the coating is heated permits some tolerance and would
have encompassed temperatures within Mine's claimed
temperature range. See In re Woodruff, 919 F.2d 1575, 1577-
1578, 16 USPQ2d 1934, 1936 (Fed. Cir. 1990) and In re Ayers,
154 F.2d 182, 185, 69 USPQ 109, 112 (CCPA 1946).
Appellant's challenge the examiner's rejection on the
rationale that the claims can't be in conflict in that the
claims of the application and patent are directed to separate
categories of invention (brief, page 4). We do not find this
line of reasoning persuasive.
As we indicated above, the test for obviousness-type
double patenting is analogous to a § 103 obviousness
determination and requires us to determine whether the claims
are patentably distinct which we have done and answered in the
negative, not whether they involve the same or separate
categories of invention as argued. The fact that the claims
of the application are drawn to a product whereas the claims
of the patent are drawn to a process does not automatically
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