Appeal No. 2000-0412
Application No. 09/046,200
rejection and correlation by the examiner at pages 7-9 of the answer. While appellant
has filed a paper identified as a terminal disclaimer on Nov. 12, 1998 (Paper No. 4),
appellant has not paid the requisite fee prior to our review of this administrative record.
The examiner repeated the double patenting rejection in the answer and appellant
indicated in the reply that the terminal disclaimer and the fee will be submitted in due
time if the Appeal is granted. Therefore, appellant has not overcome the double
patenting rejection by presenting persuasive argument or obviating the rejection by filing
a terminal disclaimer and required fee. Since the examiner has presented a prima
facie case of obviousness-type double patenting which has not been obviated or
rebutted by appellant, we must sustain the examiner’s rejection of claims 1-5.
35 U.S.C. § 103
Since the examiner has indicated that Tsuchiya is merely evidence of the use of
two guide rails and the examiner lists Tsuchiya parenthetically in the statement of the
rejection in the answer and the supplemental answer, but does not mention this
reference in the text of the rejection in the originally mailed rejection, we will treat the
rejection as based on Itoh alone. In the supplemental answer, the examiner discusses
Tsuchiya with respect to securing and strengthening the support of the image sensing
means as it travels. (See supplemental answer at pages 11 and 12.) Yet at page 11 of
the supplemental answer the examiner maintains that:
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