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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