Appeal No. 2001-2361
Application No. 09/411,369
Appellants again point to the deficiency in Torii with regard to
claim 1 on appeal and urge that such deficiency is likewise
applicable to any determination regarding dependent claim 3. We
agree, and for that reason will not sustain the examiner's
rejection of claim 3 under 35 U.S.C. § 103 as being unpatentable
over Torii in view of Ch 274,269.
In summary:
The examiner's decision rejecting claims 1 and 2 under the
judicially created doctrine of obviousness-type double patenting
has not been sustained.
The examiner's decision rejecting claim 1 under 35 U.S.C.
§ 102(b) as being anticipated by Torii has not been sustained.
In addition, the examiner's decision rejecting claim 2
alternatively under 35 U.S.C. § 102(b) and 35 U.S.C. § 103 based
on Torii, and claim 3 under 35 U.S.C. § 103 as being unpatentable
over Torii in view of CH 274,269 have both been reversed.
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