Appeal No. 2003-1509
Application 09/853,575
claims of the '987 patent and that appellants expect to file a
terminal disclaimer to remove the rejection should the claims be
found allowable in their present form (EA3). Thus, appellants
apparently concede that the claims in their present form would
have been obvious over the claims of the '987 patent by their
intent to file a terminal disclaimer. Nevertheless, since no
terminal disclaimer has been filed, the issue still remains
outstanding. Although the obviousness-type double patenting
rejection is not repeated in the examiner's answer and could be
considered withdrawn, we previously noted that we would consider
the rejection in the interest of deciding all relevant issues.
We agree with the examiner's reasoning in the final
rejection. Since the claims in the '987 patent contain all of
the limitation of the present claims, plus more, the present
claims would have been obvious and, in some cases, anticipated by
the claims in the '987 patent; e.g., claim 3 in the present
application is clearly anticipated by claim 1 in the '987
application because every limitation in claim 3 is found in
claim 1. The obviousness-type double patenting rejection of
claims 1-5, 19, 20, and 43 is sustained.
Claim interpretation
Initially, as a matter of claim interpretation, we note that
the claims do not recite a display, do not require addressing of
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