Appeal No. 2001-1411 Page 4
Application No. 08/966,876
Accordingly, we reverse the rejection of claims 1, 3-15, 17 and 18 under
35 U.S.C. § 103 as obvious over Chen in view of Taunton and Morioka.
The obviousness-type double patenting rejection:
Claims 1 and 5 stand rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-6 of
Evans. In response, appellants state (Brief, page 5), they “will address this issue
after all other issues in this case have been resolved and the claims are
otherwise in condition for allowance (e.g., by cancellation of one of the sets of
conflicting claims, by submission of a Terminal Disclaimer, or such other action
as deemed appropriate).”
We interpret this statement to mean that appellants concede to the
rejection set forth by the examiner. Accordingly, we affirm the rejection of claims
1 and 5 under the judicially created doctrine of obviousness-type double
patenting as being unpatentable over claims 1-6 of Evans.
No time period for taking any subsequent action in connection with this
appeal may be extended under 37 CFR § 1.136(a).
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