Appeal No. 1998-1782 Page 6
Application No. 08/472,332
The examiner determined (answer, p. 5) that claims 1 and
2 were rejectable under the judicially created doctrine of
double patenting over claim 1 of Kochanowski and that a
terminal disclaimer in compliance with 37 CFR § 1.321 would
overcome the rejection.
The appellant did not contest this rejection (see brief,
pp. 5-6). Instead, the appellant requests sufficient time to
file a terminal disclaimer to overcome this rejection.
Since the appellant has not contested the examiner's
determination that claims 1 and 2 are obvious over claim 1 of
Kochanowski, we are constrained to sustain the rejection the
judicially created doctrine of double patenting because the
appellant has not pointed out how the examiner erred in
rejecting those claims.
The anticipation issue
We will not sustain the rejection of claims 1 through 14
and 19 through 21 under 35 U.S.C. § 102(b) as being
anticipated by Eskilson.
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