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
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