Appeal No. 1995-4572
Application 08/035,443
It is finally noted that in the final rejection (Paper no. 12, May 27, 1994), the
examiner provisionally rejected the claims under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-9 of then co-
pending application serial no. 08/040,544 (now U.S. Patent no. 5,527,528) in view of
Hawrot. Appellants acknowledged this obviousness-type double patenting rejection in
the appeal brief (Paper no. 21, March 2, 1995), but asked that it be held in abeyance
pending the decision by the Board. The examiner did not repeat this obviousness-type
double patenting rejection in the Examiner’s Answer (Paper no. 22, May 15, 1995).
Therefore, the Board will treat this rejection as having been withdrawn since according to
MPEP 1208, “any rejection not repeated and discussed in the answer may be taken by the
Board as having been withdrawn”. The examiner should clarify whether the
obviousness-type double patenting rejection was intentionally or inadvertently withdrawn.
REVERSED
Sherman D. Winters )
Administrative Patent Judge )
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