Ex parte HARDEE - Page 7




          Appeal No. 1998-1657                                       Page 7           
          Application No. 08/674,282                                                  


               Gerber Garment Technology Inc. v. Lectra Systems                       
               Inc., 916 F.2d 683, 688, 16 USPQ2d 1436, 1440 (Fed.                    
               Cir. 1990).  The corollary to this Court's statement                   
               in Gerber Garment is that new or amended claims in a                   
               divisional application are entitled to the benefit                     
               of                                                                     
                121 if the claims do not cross the line of                           
               demarcation drawn around the invention elected in                      
               the restriction requirement.                                           
          With these principles in mind, we address the obviousness-type              
          double patenting rejections over claims 13-46 of the '328                   
          Application and over claims 8, 9, and 14-50 of the '183                     
          Application separately.                                                     


             Obviousness-Type Double Patenting over the '328 Application              
               The examiner fails to show a loss of consonance between                
          claims 13-46 of the '328 Application and the claims of the                  
          instant application.  In U.S. Patent Application 07/976,312                 
          ('312 Application), the parent application of the instant                   
          application, the examiner issued a restriction requirement                  
          dividing the initial claims into five groups.  (Paper No. 3 at              
          2.)  He explained that the fifth group comprised "[c]laim 13,               
          drawn to a method of operating a sense amplifier utilizing a                
          read amplifier and data write circuitry ...."  (Id.)  It is                 
          uncontested that the appellant elected to prosecute claim 13                







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