Appeal No. 1997-2112
Application No. 08/398,831
The examiner also appears to raise the spectre of
“provisional double patenting” with respect to “recently
allowed 08/403,332" on page 11 of the Answer. However: (1)2
no formal rejection has been entered; (2) no basis for the
“provisional double patenting” (e.g., statutory or non-
statutory) rejection is set forth (in fact, although appearing
under a “double patenting” heading, it is not entirely clear
that it is double patenting which is to “be used to reject the
instant application,” but such is presumed in view of
commentary on page 10 of the Answer); (3) no claim-to-claim
comparison of the respective subject matter is set forth; and
(4) a position that the instant claims are unpatentable for
obviousness in view of a disclosure by another in 1991, and
yet conflict with claims in a later-filed application in which
all claims have been determined by the examiner to be
patentable, appears to be inconsistent on its face. For at
least the foregoing reasons, we decline to chase the spectre.
CONCLUSION
Application for patent filed on March 13, 1995, now U.S. patent2
5,555,270, with inventors Xiao Sun and Carmie A. Hull.
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