Appeal No. 1999-1459 5
Application No. 08/625,613
has been established.
Based upon the above analysis, we have determined that the examiner’s legal
conclusion of anticipation is not supported by the facts. “Where the legal conclusion is not
supported by [the] facts it cannot stand.” In re Warner, 379 F.2d 1011, 1017, 154
USPQ 173, 177-78 (CCPA 1967).
OTHER MATTERS
The examiner should consider whether it would be appropriate to enter an
obviousness type double patenting rejection over one or more of claims 1-20 of U. S.
Patent No. 6,001,768 which was identified by Appellants as a related case. (Brief at 1).
DECISION
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