Appeal No. 2003-0925
Application No. 09/774,271
Claims 48-50, 60-62, and 72 stand rejected under the judicially
created doctrine of obviousness type double patenting as being
unpatentable over claims 1-47 of Acharya.
Claims 72-77, 79, and 81 stand rejected under the judicially
created doctrine of obviousness type double patenting as being
unpatentable over the claims of Acharya in view of Stanley.
Claims 72-74, 77-80 and 82-83 stand rejected under judicially
created doctrine of obviousness type double patenting as being
unpatentable over the claims of Acharya in view of Yukimatus.
We note that the anticipation rejection of claims 48-50 and 60-
62 has been withdrawn as indicated on page 3 of the answer.
OPINION
We have carefully reviewed appellants’ brief and the examiner’s
answer and the applied art. Based upon this extensive review, we
reverse each of the 35 U.S.C. § 103 rejections.
With regard to the rejections under the judicially created
doctrine of obviousness-type double patenting, we affirm these
rejections for the following reasons. We observe that appellants do
not cite any authority supporting their argument on page 21 in the
brief that these rejections are “moot as an appropriate disclaimer
will be filed”. Nor do appellants controvert the merits of the
obviousness-type double patenting rejections. Appellants do not
dispute that the instant claims define merely an obvious variation
of the invention claimed in U.S. Patent No. 6,210,699. On these
facts, we summarily affirm the examiner’s obviousness-type double
patenting rejections. We note appellants’ “intention” to file a
terminal disclaimer in this case. Brief, page 21.
Our reasons for reversing each of the 35 U.S.C. § 103 rejections
are set forth below.
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