Appeal No. 2001-1712
Application No. 09/456,968
F.2d 1132, 1138, 227 USPQ 543, 547 (Fed. Cir. 1985); W. L. Gore
& Assoc. v. Garlock, Inc., 721 F.2d 1540, 1553, 220 USPQ 303,
312-13 (Fed. Cir. 1983).
The Kresse reference has been cited only for claim 40 and
does not remedy the fundamental deficiency of the examiner’s
analysis.3
In summary, we affirm the examiner’s rejection under the
judicially created doctrine of non-statutory double patenting of
appealed claims 30 through 40. However, we reverse the 35
U.S.C. § 103(a) rejections of: (i) appealed claims 30 through 39
as unpatentable over Nichols in view of Newell; and (ii)
appealed claim 40 as unpatentable over Nichols in view of Newell
and Kresse.
The decision of the examiner to reject the appealed claims
is affirmed.
3 We attach to this decision a complete English language
translation of Kresse for consideration by the examiner and the
appellants.
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