Appeal No. 2005-2289 Page 5
Application No. 10/064,508
For the reasons set forth above, the examiner has not pointed out where all of
the limitations recited in the rejected claims are found in the prior art relied upon in the
rejections. Thus, the examiner has not met the burden of establishing a prima facie
case of anticipation. Accordingly, the decision of the examiner to reject claims 1, 5, 7 to
9 and 11 under 35 U.S.C. § 102 as being anticipated by Toukura or Muto is reversed.
The obviousness-type double patenting rejection
We sustain the rejection of claims 1 to 9 and 11 under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims 1-18
of Isoda.
The examiner's basis for this rejection is set forth on page 8 of the answer as
follows:
Although the conflicting claims are not identical, they are not patentably distinct
from each other because both claim an engine control having an engine
transmitting rotation to driven wheels through a transmission system and
detecting during engine acceleration variations in the rotational state of the shaft
if the degree of change in variation of the shaft is excessive and restricting an
engine output if the change is excessive.
The appellants' argument against this rejection is set forth on page 7 of the brief
as follows:
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