Appeal No. 1998-0346
Application No. 08/718,653
re Van Ornum, 686 F.2d at 948, 214 USPQ at 770. It follows that
the appellants’ above noted argument must be regarded as
unpersuasive.1
In light of the foregoing, we will sustain the examiner’s
obviousness-type double patent rejection of appealed claims 20,
24, 26, 27, 30, 32-34, 36 and 37 based upon the claims of the
Heung patent.
The examiner’s section 103 rejection, however, cannot be
sustained. This is because the Ramamurthi patent simply contains
no teaching or suggestion of the here claimed feature concerning
metal hydride particles capable of absorbing and desorbing
hydrogen and being made of a La-Ni-Al alloy. Apparently, the
examiner concludes that it would have been obvious for an artisan
with ordinary skill to provide the method of Ramamurthi with such
a feature. On the record before us, the examiner plainly has
1 The examiner views this argument of the appellants as
unpersuasive because the Heung patent might expire, due to
nonpayment of a maintenance fee, prior to expiration of a patent
issuing from the subject application. We will not adopt this
viewpoint because it appears to be inconsistent with the policy
of the Patent and Trademark Office; see, for example, the
language of the terminal disclaimer form on page 1400-63 at MPEP
section 1490(Rev. 1, Feb. 2000).
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