Appeal No. 1998-2422
Application 08/488,380
consideration of the Reply Brief, but did not present any
further reasons (Paper No. 24).
OPINION
Double Patenting
Appellant argues that the double patenting rejection over
Leedy, U.S. Patent 5,580,687 ('687 patent), is improper by
reason of estoppel because of the restriction requirement in
the ultimate parent Application 07/865,412 ('412 application)
to both the '687 patent and this application (Br3; RBr1).
Copies of the original claims and the restriction requirement
in the '412 application are submitted with the Response (Paper
No. 18) filed August 13, 1997. Appellant argues (Br3):
Note that Claims 45 and 46, corresponding to the claims
of the present application, are grouped with Group IX,
and that Claims 69-74, corresponding to the claims of the
'687 patent are grouped with Group XI. The Patent Office
has therefore previously made a determination, relied
upon by applicant, that the present invention and the
invention of the '687 patent are indeed patentably
distinct.
The Examiner does not answer this argument. The Examiner
concludes that claims 77-80 are obvious over claims 3-5 of the
'687 patent because they are broader than and encompass the
subject matter of claims 3-5, and that claims 83-88 are
obvious over claims 3-5, 10, and 11 of the '687 patent because
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