Appeal No. 1997-2436
Application No. 08/232,014
424 F.2d 1382, 1385, 165 USPQ 494, 496 (CCPA 1970)), we vacate the prior art
rejections as well as the rejection under the judicially created doctrine of obvious-type
double patenting. Should further prosecution occur, we would urge the applicants and
examiner to work together to determine what the appropriate interpretation of the claim
should be. The applicants may wish to avail themselves of this opportunity to document or
provide other evidence which would reasonably establish that one skilled in this art at the
time of filing of the application would have recognized that a composition comprising
nanoparticles, or particles of a stated size, would be recognized as reflecting mean values
rather than specific size limits. When the proper interpretation of the claims has been
made, it will then be appropriate to compare the claimed subject matter with the relevant
prior art.
SUMMARY
To summarize, we enter a new ground of rejection under the provisions of
37 CFR § 1.196(b) of claims 3-50 and vacate the rejection of claims 3-7, 11, 14-17,
21-29, 31, 34, 36-44, 46, and 47 under 35 U.S.C. § 102(e), the rejection of claims 3-50
under 35 U.S.C. § 103, and the rejection of claims 21, 22, and 36-43 under the judicially
created doctrine of obvious-type double patenting.
TIME PERIOD FOR RESPONSE
8
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