Appeal No. 2004-2291 Page 4
Application No. 10/318,506
respective positions articulated by the appellants and the examiner. As a consequence
of our review, we make the determinations which follow.
The obviousness-type double patenting rejections
The appellants have not specifically contested these rejections in the brief or
reply brief. In the reply brief (p. 8), the appellants indicate that in view of the provisional
nature of these rejections, the appellants have elected to delay filing of a terminal
disclaimer to overcome these rejections until the prior art rejections of claims 1 to 26 is
overturned by the Board. Accordingly, we summarily sustain both the rejection of
claims 1 to 6, 11 to 21 and 23 under the judicially created doctrine of obviousness-type
double patenting as being unpatentable over claims 1 to 7, 9 and 11 to 20 of U.S.
Patent No. 6,523,650 B1 and the rejection of claims 21 to 24 under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims 2 to 5
of U.S. Patent No. 6,533,083 B1.
The anticipation rejection
We will not sustain the rejection of claims 21 to 26 under 35 U.S.C. § 102(b).
A claim is anticipated only if each and every element as set forth in the claim is
found, either expressly or inherently described, in a single prior art reference.
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