Appeal No. 1998-2727
Application 08/220,949
patentably distinct from the claims of the applied references.
The applied references do not claim the determination of
whether the radio is coupled to an accessory nor the selection
of the type of alert responsive to that determination.
The Examiner applied a two part test. We agree with
the Examiner that the first part of the first test is met.
That is, the subject matter of the claims before us is fully
disclosed in the applied Mottier patent and application.
However, we find that the claims of the applied patent and
application do not provide coverage for the elements of the
claims before us. There is simply no determination of whether
or not the radio is coupled to an accessory in the applied
patent or application claims, thus no coverage for the claims
before us. Having failed the first test for this type of
double patenting, we need not proceed to the second test.
Accordingly, we will not sustain the Examiner’s
judicially created double patenting rejection of claims 11 and
18 through 20.
With respect to the double patenting rejection of
claims 12 and 21 (answer-page 10), we find nothing in the APA
6-6-
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