Appeal No. 1998-0425 Page 17
Application No. 08/272,527
In addition, the examiner has failed to establish that
the claims under appeal are not patentably distinct from any
one of claims 1-20 of U.S. Patent No. 4,889,620 or any one of
claims 1-38 of U.S. Patent No. 5,328,601. Likewise, the
examiner has failed to establish that the claims under appeal
are obvious from or generic to any one of claims 1-20 of U.S.
Patent No. 4,889,620 or any one of claims 1-38 of U.S. Patent
No. 5,328,601. Accordingly, the decision of the examiner to
reject claims 2, 3 and 11 to 32 under the judicially created
doctrine of "obviousness-type" double patenting is reversed.
5(...continued)
particular. See, e.g., C.R. Bard, Inc. v. M3 Sys., Inc., 157
F.3d 1340, 1352, 48 USPQ2d 1225, 1232 (Fed. Cir. 1998). A
broad conclusory statement regarding the obviousness of
modifying a reference, standing alone, is not "evidence."
E.g., McElmurry v. Arkansas Power & Light Co., 995 F.2d 1576,
1578, 27 USPQ2d 1129, 1131 (Fed. Cir. 1993); In re Sichert,
566 F.2d 1154, 1164, 196 USPQ 209, 217 (CCPA 1977). See also
In re Dembiczak, 175 F.3d 994, 999, 50 USPQ2d 1614, 1617 (Fed.
Cir. 1999).
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