Appeal No. 2005-1454
Application No. 10/315,763
patentable for the same reasons provided for claim 26. Appellant
also argues that because claim 27 depends upon claim 15, the
combination of claims 1, 15, and 27 are seen to be separately
patentable. For the reasons we affirmed the rejection of claims
1, 15 and 26, we likewise affirm the rejection of claim 27.
In view of the above, we affirm the 35 U.S.C. § 103
rejection of claims 26-29 as being obvious over Devic in view of
Hoseney.
V. The rejection of claims 1-18, 21-39 and 47 under the
judicially created doctrine of obviousness-type double patenting
as being obvious over claims 1-22 of U.S. Patent No. 6,497,9092
Appellant argues this rejection on page 19 of the brief.
The examiner’s position for this rejection is set forth on page 6
of the final Office action mailed June 4, 2004. The examiner
states that “although the conflicting claims are not identical,
they are not patentably distinct from each other because it would
have been obvious to treat the kernels with the peroxide and
alkali in any particular order as well as in a single step”. We
agree. We additionally note that claim 1 of U.S. Patent No.
6,497,909 is directed to:
A method of bleaching cereal grain, comprising the steps of:
2 On page 3 of the reply brief, appellant indicates the submittal of a
terminal disclaimer. Upon return of this application to the
jurisdiction of the examiner, we instruct proper handling of this
paper.
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