Appeal No. 1996-0478
Application No. 08/171,769
Claims 20, 23, 24, 27, 30, and 31 stand rejected under the judicially created
doctrine of double patenting over claims 1-5 of U.S. Patent No. 4,727,044.
Rather than reiterate the conflicting viewpoints advanced by the examiner and
the appellant regarding the above-noted rejection, we make reference to the examiner's
answer (Paper No. 22, mailed Jun. 21, 1995) for the examiner's reasoning in support of
the rejection, and to the appellant's brief (Paper No. 21, filed May 18, 1995) and reply
brief (Paper No. 25, filed Aug. 23, 1995) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied reference, and to the respective
positions articulated by the appellant and the examiner. As a consequence of our
review, we make the determinations which follow.
In support of the rejection, the examiner determined (answer, pp. 3-5) that the
subject matter claimed in the instant application is fully disclosed in the patent and is
covered by the patent since the patent and the application are claiming common
subject matter, and there is no apparent reason why appellant was prevented from
presenting claims corresponding to those of the instant application during prosecution
of the application which matured into the patent. In support of this type of rejection the
examiner cited (answer, p. 5) In re Schneller, 397 F.2d 350, 158 USPQ 210 (CCPA
1968).
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