Appeal No. 2005-0638
Application No. 10/087,301
The examiner has relied upon the following references as
evidence of unpatentability:
Von Kohorn 2,570,173 Oct. 02, 1951
Severini 2,867,108 Jan. 06, 1959
Guillermin et al. (Guillermin) 4,059,068 Nov. 22, 1977
Guertin 5,034,250 Jul. 23, 1991
Leonard et al. (Leonard) 6,737,113 B2 May 18, 2004
(filed Jan. 10, 2001)
The following rejections are pending in this appeal:
(1) claims 30, 33, 34, and 36-38 stand rejected under the
judicially created doctrine of obviousness-type double patenting
over claims 63-65, 67 and 68 of Application No. 09/757,955 (now
U.S. Patent No. 6,737,113 B2 to Leonard)(final Office action
dated Dec. 23, 2003, page 2);2
(2) claims 30, 32, 33, 35, 42-45, and 48 stand rejected
under 35 U.S.C. § 102(b) as anticipated by Von Kohorn (Answer,
page 3);
(3) claims 30-33, 36-45 and 48 stand rejected under § 102(b)
as anticipated by Severini (Answer, page 4);
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2This obviousness-type double patenting rejection was not
repeated in the Answer (see the Answer in its entirety).
However, we consider this rejection to still be pending in this
appeal since the examiner responded to appellant’s arguments from
the Brief with no indication that this rejection has been
withdrawn (Answer, pages 7-8). Furthermore, appellant presented
arguments traversing this rejection in the Reply Brief, with no
indication that the rejection has been withdrawn (Reply Brief,
page 4). This omission by the examiner of the statement of the
rejection in the Answer is moot in view of our disposition of
this rejection infra.
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