Appeal No. 1997-1236
Application No. 08/212,385
invention as set forth in claims 1-20. Accordingly, we
reverse.
We consider first the rejection of claims 1-20 under
the judicially created doctrine of obviousness-type double
patenting as being unpatentable over claims 1-20 of Li ’960.
The examiner states the following:
Although the conflicting claims are not
identical, they are not patentably distinct from
each other because while not exactly calmed
[sic] the subject matter claimed is similar to
and has been fully disclosed in the ’930 patent.
For example, it appears that the ’930 patent
discloses an optical RF network including, inter
alia, a master site,
secondary supporting sites, and an optical RF link
system linking the master and secondary sites [final
rejection, page 4].
Appellant points out what he perceives to be several
differences between the invention of the appealed claims
before us and the invention of the previously granted Li
patent [brief, pages 5-9]. The examiner responds that “the
disclosure of the ’930 [patent] sets out the claimed structure
regardless of ‘functional difference or physical foundation’”
[answer, page 4]. The examiner also observes that “the
structure disclosed [in the ’930
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