Appeal No. 2004-1448
Application No. 09/454,723
08/923,812, and subject to a rejection under 35 U.S.C. § 101 for statutory double
patenting. We leave it to the examiner, upon the return of the application to the
examiner’s jurisdiction, to determine the actual status of the claim, and whether the
claim should be rejected under 35 U.S.C. § 101.
We refer to the Final Rejection (Paper No. 11), the Examiner’s Answer (Paper
No. 16), and the Supplemental Answer (Paper No. 22) for a statement of the examiner’s
position and to the Brief (Paper No. 15) and the Reply Brief (Paper No. 17) for
appellants’ position with respect to the claims which stand rejected.
OPINION
We earlier remanded this application to the examiner (Appeal No. 2001-2358;
Paper No. 21) for the examiner to provide a written response to appellants’ arguments
in the Reply Brief, and to the new evidence filed with the Reply Brief. Appellants have
chosen not to file a response (37 CFR § 1.193(b)(1)) to the examiner’s position set forth
in the Supplemental Answer.
The references of Riordan and Shopp are applied against claims 37-40 under 35
U.S.C. § 103. Shopp discloses a “battery operated” projection screen that includes a
rechargeable battery 32 (Fig. 2). Col. 4, ll. 17-22. In appellants’ view, the reference
does not disclose or suggest a “primary” battery. (Brief at 3-4.) The examiner refers to
a technical dictionary definition as support for the view that the term “primary battery”
does not mean exclusively non-rechargeable, but includes batteries that can be
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