Appeal No. 1997-3350
Application No. 08/522,164
examiner's answer, as permitted under 37 CFR §
1.193(b)(1)(1997), with a view toward placing this application
in a condition appropriate for a decision on appeal.
Second, with regard to the rejection based upon the
combination of Mazzola and Pepe, we note that both the instant
application and the Mazzola reference appear to have the same
inventive entity; that is to say Louis R. Mazzola is the sole
inventor in both instances. Under these circumstances, the
Mazzola reference does not appear to qualify as "prior art"
under any of the provisions of 35 USC § 102 and, therefore,
does not constitute a proper basis for rejection under 35 USC
§ 103. However, the claims of the reference may, in
combination with the Pepe reference, constitute a basis for
rejection under the judicially-created doctrine of
obviousness-type double patenting.
Accordingly, the Mazzola-Pepe rejection is reversed to
the extent that it is based upon 35 USC § 103, and we remand
the application to the examiner to consider whether an
obviousness-type double patenting rejection would be
appropriate in this case.
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