Appeal No. 2005-0638
Application No. 10/087,301
examiner’s response on page 7 of the Answer, it appears that the
examiner is relying on the disclosure of Leonard as evidence of
obviousness. Finally, any analysis employed in an obviousness-
type double patenting rejection parallels the guidelines for
analysis of a section 103(a) obviousness determination. See In
re Longi, 759 F.2d 887, 892-93, 225 USPQ 645, 648 (Fed. Cir.
1985). In the analysis presented by the examiner (final Office
action dated Dec. 23, 2003, page 2), the examiner has not
presented in detail any differences between the conflicting
claims, with reasons or evidence as to why these differences
would have been obvious to one of ordinary skill in this art at
the time of appellant’s invention.
For the foregoing reasons, we cannot sustain the examiner’s
rejection of claims 30, 33, 34 and 36-38 for obviousness-type
double patenting over any claims of Leonard. Upon the return of
this application to the jurisdiction of the examiner, the
examiner should review the status and claims of Application No.
10/821,588 (Reply Brief, page 4) and properly determine whether
the claims on appeal should be rejected for obviousness-type
double patenting over any claims of this application.
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