Appeal No. 1999-0610 Page 7
Application No. 08/601,186
polysaccharides. For example, the polymer or oligomer may
include two different types of monomers, such as amylose and
ethylene, instead of being a homopolymer. We find nothing
wrong or indefinite in that.
For the foregoing reasons, we shall not sustain the
examiner's 35 U.S.C. § 112 rejection of claim 49.5
The double patenting rejection
The examiner has rejected claims 49 through 60 under the
judicially created doctrine of double patenting as being
unpatentable over claims 1 through 16 of U.S. Patent No.
5,531,715, the parent application from which the instant
application claims benefit under 35 U.S.C. § 120. The
examiner has, however, indicated that this rejection may be
overcome by the timely filing of a terminal disclaimer in
compliance with 37 CFR § 1.321(b), an action which appellants
have so far elected not to take.
As claims 50 through 60 depend from claim 49 and, thus, incorporate5
the language addressed by the examiner, we presume that the examiner's failure
to include these claims in the 35 U.S.C. § 112 rejection was an inadvertent
omission. Thus, to the extent that this rejection is directed to claims 50
through 60, it is reversed as to those claims as well.
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