Appeal No. 1998-0456 Page 7
Application No. 08/454,706
in the final rejection (page 7) that "[c]oncerning the
withdrawal of claim 9 in the copending application, the
provisional double patenting rejection will be overcome after
the claim is canceled from the copending application. Since
the claim currently remains [sic, in] the copending
application, the provisional double patenting rejection
remains." This rejection was maintained in the examiner's
answer, but was not repeated in either the first or second
supplemental examiner's answers. There is nothing in the
record to indicate that this rejection has been withdrawn.
However, since this rejection has not been repeated, we
consider the rejection to have been withdrawn by the examiner.
We turn next to the rejection of claims 9, 12, and 13
under 35 U.S.C. § 103(a). We note that the second
supplemental answer refers to the final rejection for a
statement of the rejection, and refers to the supplemental
examiner's answer for response to the arguments found in the
brief.
We begin with the rejection of claim 9 based upon the
teachings of Metroka and Barthel.
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