Appeal No. 1996-4035 Page 5
Application No. 08/257,431
positions articulated by the appellant and the examiner. As a
consequence of our review, we make the determinations which
follow.
The obviousness-type double patenting rejection
We sustain the provisional rejection of claims 22-25
under the judicially created doctrine of obviousness-type
double patenting over claims 2-3, 5, 6 and 9-12 of copending
Application No. 08/041,190.
The appellant's only argument as to the merits of this
rejection is that this rejection is moot in this appeal since
the rejection is provisional and no claims have been allowed
(brief, p. 3). The appellant then states that they "will take
appropriate action once there is an indication of allowable
subject matter in one of the applications."
We do not agree with the appellant that this rejection is
moot for the following reasons. First, a predecessor of our
reviewing court expressed its approval of a provisional
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