Appeal No. 2001-0261
Application 08/546,050
OPINION
Duplicate claim
Appellant explains in the reply brief (Paper No. 14)
received August 26, 1999, that an error was made in amending
claim 4 to depend from claim 2 in amendment A (Paper No. 4) in
that the words of claim 3 were mistakenly copied. An amendment B
(Paper No. 13) was filed by facsimile on August 24, 1999, which
corrects the mistake. The examiner notes on the amendment that
it should not be entered and states that "[t]he amendment B filed
on 8/24/99 has not been entered since the limitation in claim 4
has been changed" (Paper No. 15). However, the amendment has
been entered, evidently inadvertently.
It is obvious that something was wrong with claim 4 in
amendment A because the claim has changed but there is no
underlining or brackets to indicate an amendment. Thus,
amendment B returns claim 4 to its original form and has not been
changed as stated by the examiner, except to change the claim
dependency. There should be no objection to correcting a
clerical error. Nevertheless, a duplicate claim is not grounds
for rejection under 35 U.S.C. § 101 because both claims would
appear in the same patent and there would not be two patents with
the same claim. The Manual of Patent Examining Procedure (MPEP)
has been changed to state that a duplicate claim should be
objected to under 37 CFR § 1.75, MPEP § 706.03(k) (6th ed.,
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