Appeal No. 1997-3056 Application No. 08/377,966 in lines 34-38 in column 6 and in lines 54-60 in column 5 of the Zaromb patent, it is appropriate to regard the apparatus defined by the patent claims as being capable of sampling air at a rate of at least 100 liters/minute (i.e., the rate of 0.7 cubic meters per minute disclosed in column 6 of the patent is equal to a rate of 700 liters per minute) and of solubilizing analyte into a volume of not more than about 40 milliliters of liquid extractant (i.e., column 5 of the patent discloses a volume of liquid equal to 1-4 milliliters). Under the circumstances recounted above, it appears that the apparatus defined by appealed claims 1 and 3 fails to distinguish in terms of functional capability as well as structure over the apparatus defined by the patent claims. It is appropriate, therefore, that the Examiner and the Appellant consider whether at least pending claims 1 and 3 are subject to a rejection under the judicially created doctrine of obviousness-type double patenting as being unpatentable over claims 1-16 of U.S. Patent 5,173,264 to Zaromb. Particularly in light of the prior prosecution of this application, it is appropriate to emphasize that the aforementioned consideration of obviousness-type double patenting must conform with the guidelines concerning obviousness and double patenting 1010Page: Previous 1 2 3 4 5 6 7 8 9 10 11 12 13 NextLast modified: November 3, 2007