Appeal No. 1996-2123
Application No. 08/069,458
112. See, 37 C.F.R. ' 1.802(b). We recognize pages 63-65 of appellants= specification, where reference
is made to the deposit of this material under the Budapest Treaty. However, missing from this reference
to a deposit is an affirmative statement that Aall restrictions imposed by the depositor on the availability to
the public of the deposited material will be irrevocably removed upon the granting of the patent.@ See, 37
C.F.R.
' 1.808(a)(2).
Upon return of this application, the examiner should take a step back to evaluate whether a
deposit requirement is necessary, and then take the necessary action. See, 37 C.F.R. ' 1.809, see
generally, 37 C.F.R. '' 1.801-1.809.
Double Patenting:
Several applications that have issued, or are currently pending, appear to be related to the
application currently on appeal. Upon return of this application, the examiner should take a step back to
evaluate the prosecution history of all related patents and applications, to determine whether additional
double patenting issues arise.
We note United States Patent No. 5,821,109, drawn to A[a] biologically pure strain of
Acetobacter.@ We recognize the term of this patent shall not extend beyond the expiration date of >162
discussed above. The examiner should review this file and determine if double patenting issues arise.
SUMMARY
The rejection under 35 U.S.C. ' 112, first paragraph, is reversed. The obviousness-type double
patenting rejection is vacated in view of a new ground of rejection under 37 C.F.R. ' 1.196(b), and the
application is remanded to the examiner for reevaluation of the 102(b)/103 rejection.
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