Appeal No. 2000-0091
Application No. 08/732,254
In re Kaplan, 789 F.2d 1574, 1579-80, 229 USPQ 678, 683 (Fed. Cir. 1986)
(emphasis in original).
Thus, a proper rejection for obviousness-type double patenting requires
showing that the later-claimed subject matter “would have been obvious to those
of ordinary skill in the relevant art” based on the claims in the earlier patent. As
discussed above, the examiner has pointed to nothing in either the claims or the
disclosure of the Palmer patent that would have suggested the S and T crystal
forms of delavirdine mesylate to a person of ordinary skill in the art. We
therefore reverse the rejection for obviousness-type double patenting.
Summary
We reverse all of the rejections because the examiner has not established
that the prior art disclosed or suggested the claimed S and T crystal forms of
delavirdine mesylate.
REVERSED
SHERMAN D. WINTERS )
Administrative Patent Judge )
)
)
) BOARD OF PATENT
DOUGLAS W. ROBINSON )
Administrative Patent Judge ) APPEALS AND
)
) INTERFERENCES
)
ERIC GRIMES )
Administrative Patent Judge )
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