Appeal No. 2001-1786
Application 08/420,796
taken into consideration, in reaching our decision, the
appellant’s arguments set forth in the brief along with the
examiner’s rationale in support of the rejections and arguments
in rebuttal set forth in the examiner’s answer.
It is our view, after consideration of the record before
us, that the evidence relied upon and the level of skill in the
particular art would not have suggested to one of ordinary skill
in the art the obviousness of the invention as set forth in the
claims on appeal. We reach the same conclusion with respect to
the double patenting rejection. Accordingly, we reverse.
We consider first the rejection of the appealed claims on
the ground of obviousness-type double patenting over the claims
of Eisele. As a preliminary matter, we note that appellant filed
a terminal disclaimer in parent application Serial No.
07/947,570, and that this is a continuation application of that
application filed under 37 CFR § 1.62 (file wrapper continuation)
which was effective at that time. Appellant argues that the
terminal disclaimer filed in the parent application should be
effective in this file wrapper continuation [brief, pages 7-8].
The examiner responds that the terminal disclaimer filed in the
parent application is not effective in this file wrapper
continuation because the disclaimer does not by its terms
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