Appeal No. 2002-2308
Application No. 08/943,889
Hence, we have not sustained either of the rejections under
35 U.S.C. § 103.
We turn our attention now to the rejections based on
obviousness-type double patenting.
We also will not sustain the rejections based on
obviousness-type double patenting because each of these
rejections is based on Walton’s alleged teaching of the claimed
“push-on/push-off switch” which, as discussed supra, Walton fails
to show. Moreover, we note that the examiner’s rejections are
not entirely clear because all of claims 6, 8, 9 and 16-19 stand
rejected, alternatively, over all of the claims of U.S. Patent
No. 6,130,602, or all of the claims of U.S. Patent No. 5,963,177,
each in view of Walton. Thus, it is not clear exactly which of
the instant claims are being rejected over which of the patented
claims. In making a rejection based on obviousness-type double
patenting, the examiner is required to specifically point out
exactly which claim or claims of the reference patent is/are
being relied upon in rejecting, specifically, which claim(s) of
the instant application. The examiner has failed to do that here
and, so, no prima facie case of obviousness-type double patenting
has been shown.
-7–
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