Appeal No. 1996-2123
Application No. 08/069,458
Claims 1, 3 and 5 of >162 are directed to biologically pure strains of Acetobacter with ATCC Nos.
53264 (claim 1); 53263 (claim 3); and 53524 (claim 5). Strain 53264 (claim 1) is a mutant strain of
Acetobacter derived from strain NRRL B42. Strains 53263 (claim 3) and 53524 (claim 5) are mutant
strains of Acetobacter derived from strain 53264 (claim 1). Therefore, if the claims are read according to
alternative 1 above, then the strains of Acetobacter in claims 1, 3 and 5 of >162 are the same mutants as
appealed claim 55.
In the alternative, claims 3-5 of >162 are directed to biologically pure strains of Acetobacter with
ATCC Nos. 53263 (claim 3); 53250 (claim 4); and 53524 (claim 5). Strains 53263 (claim 3) and 53524
(claim 5) are mutant strains of Acetobacter derived from strain 53264 (claim 1). Strain 53750 (claim 4) is
a mutant strain of Acetobacter derived from strain 53263 (claim 3). Therefore, if the claims are read
according to alternative 2 above, then the strains of Acetobacter in claims 3-5 of >162 are mutants of
strain ATCC 53264 [1306-3] and strain ATCC 53263 [1306-11].
In either interpretation of claim 55, the only difference between the claims of >162 and appealed
claim 55 is the scope of the claim. In evaluating a double patenting rejection in circumstances such as this,
we direct the examiner=s attention to In re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 621 (CCPA 1970):
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