Appeal No. 2003-1402
Application No. 09/034,969
Claims 11-13, 16, 27, 28, and 29 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Smith and Bustos.
Claims 20, 22-24, and 33 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Smith and Theimer.
Claim 21 stands rejected under 35 U.S.C. § 103 as being unpatentable over
Smith, Theimer, and Bustos.
We refer to the Final Rejection (Paper No. 6) and the Examiner’s Answer (Paper
No. 13) for a statement of the examiner’s position and to the Brief (Paper No. 12) and
the Reply Brief (Paper No. 14) for appellant’s position with respect to the claims which
stand rejected.
OPINION
Obviousness-type double patenting rejection of claims 1-31
The examiner has rejected all the instant claims under the judicially created
doctrine of obviousness-type double patenting over claims contained in several U.S.
patents. Appellant’s response is that a terminal disclaimer was filed on December 18,
2001 and re-filed April 18, 2002. (Brief at 20.) The examiner responds in turn that the
paper “provided with the response of 1/8/02" appears to be “incomplete.” The examiner
points to first paragraph, line 5, of the alleged disclaimer wherein, the examiner
contends, the phrase “‘applicant has provided a separate terminal’ appears to be
incomplete.” (Answer at 19.)
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