Appeal No. 1999-1337 Page 3
Application No. 08/393,232
GROUNDS OF REJECTION1
Claims 35-42 and 47-49 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Offidani, in view of Baumgartner, Holmes, Kimmel, Biaglow,
Ogawa and Kung.
Claims 35-42 and 47-49 stand rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims
1-24 of ‘642, or claims 1-3, 5, 10, 12-14, 16 and 22-25 of ‘703 in view of Ogawa
and Kung.
We reverse.
DISCUSSION
According to appellant (Brief, page 9-10):
Most of the references cited by the Examiner, i.e., Offidani
et al., Baumgartner et al., Holmes, Biaglow et al., the
Baumgartner ‘642 patent and co-pending Baumgartner
application S.N. 07/737,703 are cited by the examiner with
respect to the base digestion and analysis elements of the
claims. However, Applicant does not argue the patentability
of those elements of the claims…. Instead, the Applicant
seeks the allowance of the pending claims on the basis of
the recitation in the claims of a particular type of filter to
remove the marijuana interfering substance.… Only the
Kung et al. and Ogawa references relate to the filtering of
impurities, and thus will be addressed specifically in detail
below.
1 We note the examiner’s statement of each ground of rejection omits claim 49. However, the
Final Rejection (page 2) clearly states “[n]ewly added claim 49 is rejected for reasons of
record….” Therefore, it appears that the omission is a typographical error. Accordingly, the
grounds of rejection identified herein include claim 49.
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