Appeal No. 2001-2361
Application No. 09/411,369
OPINION
After careful consideration of appellants' specification and
claims, the teachings of the applied references and each of the
arguments and comments advanced by appellants and the examiner,
we have reached the determinations which follow.
Turning first to the examiner's provisional rejection of
claims 1 and 2 under the judicially created doctrine of
obviousness-type double patenting, we observe that the examiner
has not identified the differences between claims 1 and 2 of the
present application and claims 1 through 4 of appellants' co-
pending application No. 09/411,370, or provided reasons why any
such differences would have been obvious to one of ordinary skill
in the art at the time of appellants' invention. Instead, it
appears that the examiner has merely asserted that claims 1 and 2
of the present application are not patentably distinct from
claims 1 through 4 of the co-pending application, contending that
the broad limitations in the instant claims encompass
the specific limitations of the same structure in the
copending application, while the specific limitations
in the copending claims anticipate the broad
limitations of the same structure in the instant
claims. If claim 1 of either application were allowed
prior to allowance of the other claim 1, it would
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