Appeal No. 2001-0103
Application 08/763,465
An obviousness-type double patenting rejection is a question of law. In re
Goodman, 11 F.3d 1046, 1052, 29 USPQ2d 2010, 2015 (Fed. Cir. 1993), Texas
Instruments Inc. v. International Trade Commission, 988 F.2d 1165, 1179, 26 USPQ2d
1018, 1029 (Fed. Cir. 1993). Such a rejection rejects claims to subject matter in a
pending application which are different but not patentably distinct from the subject
matter claimed in a prior patent. Goodman, 11 F.3d at 1052, 29 USPQ2d at 2015, In re
Braat, 937 F. 2d 589, 592, 19 USPQ2d 1289, 1291-1292 (Fed. Cir. 1991).
In the present instance, we note that claims 1 and 2 of Northrup II recite a
microfabricated reactor having a sleeve reaction chamber, the chamber having a slot,
and the slot (per claim 1) constructed to enable insertion of an insert and (per claim 2)
being configured to enable insertion of a reaction fluid, and a heater. Claim 1 of the
present invention recites a sleeve reaction chamber including a slot for insertion of
reaction fluid. Claim 15, which depends from claim 1, recites a heater.
We note that the scope of the claims differs solely by virtue of the different order
of listing of the elements in the claims, and slight changes in wording. For example, the
slot is configured to accept an insert in Claim 1 of Northrup II, but that same slot is
configured for insertion of a fluid in Claim 2 of Northrup II. Accordingly, the claims of
Northrup II and the present invention are clearly no more than obvious variants as
outlined by the Examiner.
We therefore affirm this rejection.
Summary of Decision
The Rejection of Claims 27-29 and 32 under 35 U.S.C. §112, second paragraph,
is affirmed.
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