Appeal No. 1998-3003 Page 7
Application No. 08/589,621
on obviousness-type double patenting. As for the examiner's
bald assertion that
[i]t would have been obvious to one skilled in the art to
provide the claims of US 4,960,437 with a printed circuit
board with a printed circuit to minimize the size of the
device which would enable it to be used on smaller (and
therefore more) lures
we find such pontificating to be of no evidential value in
establishing obviousness of the appellants' invention as
defined in claims 1 through 8 on appeal when considered in
light of claims 1 through 18 of the appellants' prior patent.
In the final analysis, we find a total failure in the evidence
to support the examiner's position, and that the examiner's
entire approach to this rejection was improper. Accordingly,
we will not sustain the examiner's rejection of claims 1
through 8 on appeal based on the judicially created doctrine
of obviousness-type double patenting. 4
The anticipation rejection
4The examiner should consider whether or not claims 1
through 8 should be rejected on the judicially created
doctrine of obviousness-type double patenting over U.S. Patent
No. 5,485,697.
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