Interference No. 103,950
Tsuruta moves to designate Nardella’s claims 38 through
42 of the Nardella’s involved application (“Nardella
application”), as not corresponding to a count. Tsuruta
argues that claims 38 through 42 of Nardella’s application
Serial No. 08/477,289 are identical to claims 1 through 3, 5
and 9 of Nardella’s U.S. Patent No. 5,665,085 (“Nardella
patent”) and that there are only minor differences between
claim 42 of Nardella’s application and claim 9 of Nardella’s
application. Tsuruta argues that the filing of the statutory
disclaimer does not obviate the statutory double patenting
problem created by these two sets of claims.
Applicable law5
i.
Tsuruta alleges that Nardella's involved claims 38
through 42 are unpatentable based on what appears to be
"statutory" double patenting (as opposed to "obviousness-type"
double
5 This portion of the opinion was authored by Senior Administrative Patent Judge
McKelvey.
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