Appeal No. 2003-0540 Page 4
Application No. 09/737,001
In the final rejection (p. 4) and the answer (p. 6), the examiner set forth his
determination that claims 9 to 13 are not patentably distinct from claims 14 to 32 of
copending Application No. 08/714,661.
The appellant has not specifically contested this rejection in the brief or reply
brief. Since the appellant has not asserted any error that would cause this rejection of
claims 9 to 13 to be in error, we summarily sustain the provisional rejection of claims 9
to 13 under the judicially created doctrine of obviousness-type double patenting over
claims 14-32 of copending Application No. 08/714,661.2
The written description rejection
We sustain the rejection of claims 9 to 13 under 35 U.S.C. § 112, first paragraph.
The first paragraph of 35 U.S.C. § 112 states that:
The specification shall contain a written description of the invention, and
of the manner and process of making and using it, in such full, clear, concise,
and exact terms as to enable any person skilled in the art to which it pertains, or
with which it is most nearly connected, to make and use the same.
In written description cases, " [t]he primary consideration is factual and depends on the
nature of the invention and the amount of knowledge imparted to those skilled in the art
2 Page 14 of the brief provides that the appellant is amenable to filing a terminal disclaimer in this
application.
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