Appeal No. 2000-1131 Page 3
Application No. 08/505,183
Because Appellants did not contest the obviousness-type double patenting rejection over
Hert, we summarily affirm. Furthermore, pursuant to our authority under 37 CFR § 1.196(b), we
make a new ground of rejection over Hert in view of Modern Plastics Encyclopedia. While we
find that Stevens does not anticipate the subject matter of claims 1 and 4-8, we conclude that
Stevens renders the subject matter of claims 1, 4, and 6-8 obvious. Therefore, we reverse the
decision of the Examiner to reject claims 1 and 4-8 under 35 U.S.C. § 102, but, pursuant to our
authority under 37 CFR 1.196(b), we make a new ground of rejection of claims 1, 4, and 6-8
under 35 U.S.C. § 103(a). We reverse the 35 U.S.C. § 112, first paragraph rejection. Our
reasons and new rejections follow.
OPINION
Obviousness Double Patenting
Appellants note the Examiner’s rejection of claims 1 and 3-8 under the judicially created
doctrine of obviousness-type double patenting over claims 1-5 of Hert and request that the
requirement for a terminal disclaimer be held in abeyance until allowable subject matter has been
indicated (Brief, page 3 n.1). Appellants, thus, have acquiesced in the rejection and we therefore
summarily affirm.
New Ground of Rejection over Hert in View of Modern Plastics Encyclopedia
We make the following new ground of rejection pursuant to our authority under 37 CFR §
1.196(b):
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