Appeal No. 1996-2240
Application No. 08/105,482
we affirm the provisional rejection of claims 1 through 20 under the doctrine of
obviousness-type double patenting.3
Claims 1, 2, 10, 21 through 23 and 27 stand rejected as unpatentable over claims 1
through 4 of U.S. Patent No. 4,863,873, under the doctrine of obviousness-type double
patenting; claims 1 through 5, 7 through 10, 21 through 23 and 27 stand rejected as
unpatentable over claims 1, 4 through 8, 10, 12 through 16, 18, 19 and 22 through 23 of
U.S. Patent No. 5,104,639, on the same ground. None of the patented claims recites
comparison with a frequency distribution database, nor is that limitation adequately
addressed in either rejection. Like the rejections under 35 U.S.C. § 103, we find no
reason stemming from the patented claims which would have led a person having ordinary
skill to the claimed method. The rejections of the claims on double patenting grounds over
U.S. Patent Nos. 4,863,873 and 5,104,639 are reversed.
3Claim 21 depends from claim 10, and has been grouped with claims 1 through 20 by appellant
(see page 9 of the Brief). It is unclear to this merits panel why it was not included in the provisional
obviousness-type double patenting rejection. This issue should be addressed in any further prosecution of
this application.
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