Appeal No. 98-1591
Application 08/417,625
as
being unpatentable over Lilly. 2
OPINION
Appellants do not challenge the provisional obviousness-
type double patenting rejections. We therefore summarily
affirm these rejections. As for the rejection under 35 U.S.C.
§ 103, we have carefully considered all of the arguments
advanced by appellants and the examiner and determine that
claims 36, 37 and 40-45 are unpatentable. Accordingly, we
affirm the rejection of these claims under 35 U.S.C. § 103.
We do not, however, affirm the rejection under 35 U.S.C. § 103
of claims 38 and 39.
Regarding the rejection under 35 U.S.C. § 103, appellants
indicate that claims 36, 37 and 40-45 stand or fall together,
as do claims 38 and 39 (brief, page 8). Appellants state that
claim 42 is exemplary of the first group of claims (brief,
2In the examiner’s answer, the rejection under 35 U.S.C.
§ 103 does not include claim 45. This omission appears to be
inadvertent. The final rejection (paper no. 7, page 2)
included this claim in the rejection under 35 U.S.C. § 103,
and appellants’ discussion of the rejection under 35 U.S.C.
§ 103 includes claim 45 (brief, page 2). Accordingly, we
consider the rejection of claim 45 under 35 U.S.C. § 103 to be
before us for consideration.
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