Appeal No. 1998-3405
Application No. 08/378,745
We make no finding concerning the appropriateness of a rejection based upon
obvious-type double patenting since there is no evaluation concerning appropriate claim
interpretation at this time. Therefore, we remand the application to make the
appropriate findings concerning the scope of the claims in both the patent and the claims
at issue and to consider the appropriateness of a rejection under obvious-type double
patenting.
CONCLUSION
To summarize, the decision of the examiner to reject claims 57-88 under 35 U.S.C.
§ 101 is reversed, and the application is remanded to the examiner to make claim
interpretations concerning the scope of the claims and to consider a rejection under the
judicially created doctrine of obvious-type double patenting.
This application, by virtue of its “special” status, requires an immediate action.
MPEP § 708.01(D)(Rev. 1, Feb. 2000).
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