Appeal No. 1997-1593
Application No. 08/469,685
The issues before us on this appeal correspond to those
of related Appeal No. 97-1746 for the previously mentioned
copending application Serial No. 08/469,801. For a complete
exposition of these issues and our disposition of them, we
refer to our decision in the related appeal. A copy of this
last mentioned decision is attached hereto for the reader’s
convenience.
The examiner’s obviousness-type double patenting
rejection is hereby summarily sustained since it has not been
contested by the appellants on this appeal.
However, the section 102(b) rejection cannot be sustained
since the document applied in this rejection does not
constitute prior art. More specifically, as fully explained
in our attached decision, at the relevant point in time (i.e.,
the “critical date”), the Tonkovich thesis was not accessible
to the extent required for a “printed publication” under 35
U.S.C. § 102(b).
For the reasons set forth above and in our decision on
the related appeal, the examiner’s decision rejecting claims 1
through 19 is affirmed.
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