Ex parte KLINGLER et al. - Page 3




            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.                   
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