Appeal No. 1998-0690
Application No. 08/562,796
In reaching our decision in this appeal, we have given careful consideration to the
appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence of
our review, we make the determinations which follow.
OBVIOUS-TYPE DOUBLE PATENTING
At the outset we acknowledge that the examiner does not mention the fact that the
originally issued claims from the US Patent 5,025,335 have been modified through a
reexamination proceeding. Since the claims have been changed, the proper claims for
evaluation of any double patent rejection must be to the reexamined claims as recited in
the Reexamination Certificate B1 5,025,335. (See brief at page 19 et seq.) From our
review of the examiner’s brief discussion, we find that the examiner has not set forth a
comparison of the present claims to the reexamined claims beyond the statement that the
patented claims do not recite a limitation concerning 4 support posts. (See answer at
pages 4-5.) In our opinion the examiner has not set forth a comparison of the reexamined
claims to the present claims on appeal to establish a prima facie case of obvious-type
double patenting. Therefore, we will not sustain the rejection
of claims 1-5, 19, 23-25 and 28-33 under obvious-type double patenting.
35 U.S.C. § 103
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