Appeal No. 1997-3995
Application No. 07/952,303
claims 1-19 of Nilssen “since the claims, if allowed, would
improperly extend the ‘right to exclude’ already granted in
the patent” [answer, page 4]. Although this rejection was
designated as a new ground of rejection in the answer,
appellant had been responding to a double patenting rejection
made on this basis all during the prosecution. Therefore,
appellant’s failure to
respond to this “new” rejection does not lead to dismissal of
the appeal as indicated by the examiner.
Rather than repeat the arguments of appellant or the
examiner, we make reference to the brief and the answer for
the respective details thereof.
OPINION
We have carefully considered the subject matter on
appeal, the rejections advanced by the examiner and the
evidence of obviousness relied upon by the examiner as support
for the rejections. We have, likewise, reviewed and taken
into consideration, in reaching our decision, the appellant’s
arguments set forth in the brief along with the examiner’s
rationale in support of the rejections and arguments in
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