Appeal No. 1998-1664
Application No. 08/323,982
of obviousness-type double patenting over (i) claims 1 through
80 of Adams and (ii) claims 1 through 69 of Blystone. (Pages
3-4.)
Notwithstanding these obviousness-type double patenting
rejections, which have been maintained, the examiner withdrew
the §102(e) rejections upon the appellants’ submission of a
declaration under 37 CFR § 1.131 (1995). But if the
obviousness-type double patenting rejections are to be
maintained here, a declaration under 37 CFR § 1.131 would be
ineffective to antedate Adams and Blystone as prior art
references available under
§ 102(e). Specifically, 37 CFR § 1.131(a)(1) (1995) states:
When any claim of an application or a patent
under reexamination is rejected under 35 U.S.C.
102(a) or (e), or 35 U.S.C. 103 based on a U.S.
patent to another which is prior art under 35 U.S.C.
102(a) or (e) and
which substantially shows or describes but does not
claim the same patentable invention, as defined in
37 CFR 1.601(n), or on reference to a foreign patent2
237 CFR § 1.601(n) (1995) reads in part:
Invention “A” is the same patentable invention
as an invention “B” when invention “A” is the same
as (35 U.S.C. 102) or is obvious (35 U.S.C. 103) in
view of invention “B” assuming invention “B” is
prior art with respect to invention “A”.
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