Appeal No. 1997-3056
Application No. 08/377,966
before us, we also cannot sustain these other obviousness-type
double patenting rejections of claims 5-8. In short, we cannot
sustain any of the obviousness-type double patenting rejections
constructed and advanced on this appeal by the Examiner because
they are all tainted with fatal error, as least in the form of
impermissible hindsight, in relation to the Examiner’s conclusion
that it would have been obvious “to modify” the patent claim
apparatus “to use” a filtration unit of the type disclosed in the
MiniKap brochure.
OTHER ISSUES
Although the double patenting rejections formulated by the
Examiner cannot be sustained, it is our determination that the
record before us presents other issues involving obviousness-type
double patenting which should be addressed and resolved by the
Appellant and the Examiner. These other issues become apparent
upon a proper evaluation of the apparatus defined by the appealed
claims in comparison with the apparatus defined by the claims of
Patent No. 5,173,264 to Zaromb. Specifically, it is our perception
that the apparatus structure defined by the patent claims
corresponds to the structure (i.e., satisfies the structural
requirements) defined by certain of the appealed claims.
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