Appeal No. 2003-0132
Application 09/741,356
Rather than reiterate the conflicting viewpoints advanced by
the examiner and appellants regarding the obviousness-type double
patenting rejection, we refer to the examiner's answer (Paper No.
13, mailed July 8, 2002) and to appellants’ brief (Paper No. 12,
filed March 27, 2002) for a full exposition thereof.
OPINION
After careful consideration of appellants’ specification and
claims 1 through 17, the subject matter set forth in claims 1
through 6 and 10 through 14 of Cline ‘686, and each of the
arguments and comments advanced by appellants and the examiner,
we have reached the determinations which follow.
While the examiner has purportedly rejected claims 1 through
17 under the judicially created doctrine of obviousness-type
double patenting, we observe that the examiner has apparently
lost sight of the need for such a rejection to include an
analysis paralleling that required in a 35 U.S.C. § 103
obviousness determination, i.e., an analysis including the
factual inquiries set forth in Graham v. John Deere, 383 U.S. 1,
148 USPQ 459 (1966). More particularly, we note that the
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