Appeal No. 2001-1820
Application No. 09/169,280
the art, taking into account any enlightenment from the
specification). Accordingly, in view of our claim construction,
we determine that the method of protecting a substrate in a
normal atmosphere as disclosed by either Philipp or Blohowiak
would have included the method as recited in claims 24-25.
Accordingly, we agree with the examiner’s conclusion that such a
method would have been suggested to one of ordinary skill in this
art from the teachings of either Philipp or Blohowiak.
Since the examiner’s findings are from claims 1-7 of
Blohowiak, our analysis and agreement with the examiner’s
findings and conclusions of law apply equally to the rejections
under section 103(a) and under the judicially created doctrine of
obviousness-type double patenting.
Appellants argue that Blohowiak is not a reference against
the present application since this application claims CIP
(continuation-in-part) status from Blohowiak (Brief, page 7) and
“the present application has the same effective filing date for
everything that Blohowiak teaches or suggests.” Reply Brief,
page 8. This argument is not well taken since appellants admit
that Blohowiak does not include a pigment (Brief, page 7; Reply
Brief, page 8). As found by the examiner (Answer, page 11):
The matter added to the parent of this continuation in
part [i.e., this application on appeal] includes the
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