Appeal No. 97-0480
Application No. 07/858,818
October 05, 1995 (Paper no. 14, page 2)), the 1987 Sanford “R” reference is not available as prior art
(Brief, page 6). Since the examiner has not challenged appellants’ statements, we find that Sanford “R”
is not available as prior art and reverse the provisional rejection of claims 10, 13, 14 and 16 under the
judicially created doctrine of obviousness-type double patenting over the claims of the ‘882 application
in view of Sanford “R.”
III. Provisional rejection of claims 10, 13, 14 and 16 under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-7, 9-16, 19, 21-24, 37-40
and 42 of copending application no. 07/931,882 in view of Sanford.
Appellants have not challenged the propriety of the provisional rejection of claims 10, 13, 14
and 16 under the judicially created doctrine of obviousness-type double patenting over the claims of the
‘882 application in view of Sanford and are prepared to file a Terminal Disclaimer in either application
should the other issue as a patent (Brief, page 6; Response filed July 11, 1994 (Paper no. 13), page 3).
Since no Terminal Disclaimer has yet been submitted to overcome this rejection, we summarily affirm
the provisional rejection of claims 10, 13, 14 and 16 under the judicially created doctrine of
obviousness-type double patenting over the claims of the ‘882 application in view of Sanford.
CONCLUSION
In conclusion, the decision of the examiner (I) to reject claims 10, 13, 14 and 16 under 35
U.S.C. § 103 as being unpatentable over Sanford taken with Klein is reversed, (II) to provisionally
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