Appeal No: 2000-0635
Application No: 08/511,028
D) separating the reaction mixture from
C) into an acid phase and an organic
phase containing dinitrotoluene,
and E) recovering the dinitrotoluene from the
organic phase separated in D).
All the claims were finally rejected under the judicially
created doctrine of obviousness-type double patenting in view
of the claims of U.S. patent 5,345,012 to Schieb et al.
(Schieb) and under 35 USC § 103 in view of the disclosure of2
Schieb. The claims were also finally rejected under the
judicially created doctrine of obviousness-type double
patenting in view of the claims of copending application
08/510,992 ('992) ; however, the examiner withdrew the3
rejection based on the '992 claims in the examiner's answer
(Paper 12 (Ex. Ans.) at 2-3).
In maintaining the rejection of claims 1-10 over Schieb,
the examiner states (Paper 12 at 4):
Although the conflicting claims are not identical,
they are not patentably distinct from each other
because Schieb et al. teach (1) that the molar ratio
of nitric acid to toluene is maintained at a level
of at least 2:1, whereas the instant invention
discloses of (sic) a molar ratio of at least 1.5:1
2 5,345,012 was filed 3 November 1993.
3 On 21 October 1997, 08/510,992 issued as Patent No. 5,679,873.
-3-
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