Appeal No. 1997-3805
Application No. 08/439,602
The references relied upon by the examiner are:
Gantzer 4,556,640 Dec. 3, 1985
Eur. Pat. Spec. (Baker) 0 308 227 Jul. 22, 1992
Claims 24 through 26 stand rejected under the judicially-created doctrine of
obviousness-type double patenting as unpatentable over claims 4, 10 and 16 of U.S.
Patent No. 5,563,071, while claims 24 through 26 and 30 through 43 stand rejected under
35 U.S.C. § 103(a) as unpatentable over Baker and Gantzer.
We affirm the obviousness-type double patenting rejection and reverse the
obviousness rejection.
DISCUSSION
The claims on appeal are drawn to methods, compositions and kits for detecting
occult blood. Each of the claims requires an enhancer in a liquid carrier, wherein the
enhancer is selected from the group consisting of tertiary and quaternary amines having a
phenyl or substituted phenyl group attached to the nitrogen.
Obviousness-type Double Patenting
In deciding this issue, we have considered the arguments made in appellant’s Brief
(paper no. 11) and in the Examiner’s Answer (paper no. 12). We have also considered the
prosecution histories of parent application serial no. 08/121,072 (now U.S. Patent
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