Appeal No. 2001-1553 Page 2
Application No. 09/224,757
The appellant's invention relates to gun barrels which are light weight, ultra-high
strength, corrosion resistant and virtually burst-proof and have low heat conductivity and
low coefficient of friction (specification, page 1). A copy of claims 10 and 21 under
appeal is set forth in the appendix to the appellant's brief and a copy of claims 25, 26
and 31 is set forth in the appendix to the examiner’s answer.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied prior art references, and to the
respective positions articulated by the appellant and the examiner. As a consequence
of our review, we make the determinations which follow.
Double Patenting
The examiner has rejected claim 10 under the judicially created doctrine of
double patenting for the reasons stated on pages 5-6 and 7-8 of the answer.
Appellant’s only argument thereagainst is that the examiner issued a requirement for
election of species in parent Application No. 08/753,182 (now U.S. Pat. No. 5,856,631,
issued January 5, 1999) which included a species to which claim 10 on appeal is
directed and that, thus, use of appellant’s earlier patent as a reference against this
claim is contrary to 35 U.S.C. § 121 (brief, pages 4-5). For the reasons which follow,
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