Appeal No. 1999-0711 Page 4
Application No. 08/876,869
Reference is made to the Brief and Reply Brief (Paper Nos. 24 and 26) and the answer
(Paper No. 25) for the respective positions of the appellants and the examiner with regard to
the merits of these rejections.
OPINION
In reaching our decision in this appeal, we have given careful consideration to the
appellants' specification and claims, to the applied prior art references, and to the respective
positions articulated by the appellants and the examiner. As a consequence of our review, we
make the determinations which follow.
The obviousness-type double patenting rejection
The appellants have not contested the examiner's rejection of claims 48, 49, 52, 53 and
55-57 under the judicially created doctrine of obviousness-type double patenting. Rather, the
appellants have indicated that they "stand ready and willing to supply any necessary Terminal
Disclaimer in a timely fashion should the claims of this Appeal otherwise be held allowable"
(see Brief, page 6). Therefore, we shall summarily sustain the examiner's rejection of claims
48, 49, 52, 53 and 55-57 under the judicially created doctrine of obviousness-type double
patenting.
1(...continued)
April 17, 1998 in that application. Further, we note that the provisional rejection set forth in the final rejection
(Paper No. 20, page 4) is no longer provisional, as claims 2, 4, 9 and 13-16 of Application No. 08/963,541 on which
the provisional rejection was based were subsequently patented as claims 2, 3, 5, 11, 12, 1 and 13, respectively, in
U.S. Patent No. 5,813,818, issued September 29, 1998.
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