Appeal No. 2001-2353
Application No. 09/411,370
the Technology Center (TC) Director if such a rejection were to
be made in the present application. As an alternative, if the
examiner is of the view that the original election requirement
was, at least in-part, improper, then the examiner might wish to
consider following the guidance in MPEP § 822 and, if
appropriate, withdraw the requirement and require the conflicting
applications to be joined. If a double patenting rejection is
made or reimposed in the present application, the examiner also
should provide a detailed explanation of why the protections
afforded appellants by 35 U.S.C. § 121 are inapplicable. The
examiner's mere assertion that the statute does not prohibit a
double patenting rejection where the applications are claiming
the same or substantially the same invention is of little value,
especially given appellants' arguments in their brief (pages 9-
13) and reply brief (pages 2-4).
Looking next to the examiner's rejection of claims 2 and 3
under 35 U.S.C. § 112, second paragraph, the examiner asserts
that the subject matter of these claims is specifically disclosed
with respect to the species shown in Figure 10 and that the
disclosure pertaining to the elected species of Figure 11 does
not mention the "plurality of slits" of claim 2 or the engagement
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