Appeal No. 2001-0252
Application 08/760,652
5,430,964 and that we agree with appellant’s position set
forth in the brief and reply brief as to those differences.
Accordingly, we are constrained to reverse the examiner's
double patenting rejection of claims 23 and 30 through 32.
As to claims 21 and 22, we share appellant’s view as set
forth on page 9 of the brief and pages 6 and 7 of the reply
brief, that the examiner has not made out a prima facie case
for obviousness since he has merely made a general assertion
that the identified difference “is considered to be within one
skilled in the art to modify claim 1 of Patent No. 5,430,964”
(answer, page 3), without any evidence to support such a
conclusion. Appellant has argued (reply brief, pages 6-7)
that the modification urged by the examiner is not obvious and
also provided reasons in support of that position. In the
face of those arguments we have nothing from the examiner but
speculation to support his conclusion. Thus, we will not
sustain the examiner’s rejection of claims 21 and 22 under the
judicially created doctrine of obviousness-type double
patenting.
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