Appeal No. 2005-1422 Page 4
Application No. 09/997,522
Claims 9 and 10 stand rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claim 6 of U.S.
Patent No. 5,686,597.
Claims 6 and 7 stand rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 4 and 5 of
U.S. Patent No. 5,686,597.
Claims 3, 6, 7, 9, 12, 13, and 58 stand rejected under the written
description provision of 35 U.S.C. § 112, first paragraph.
Claims 3, 6, 7, 9, 12, 13, and 58 stand rejected under the enablement
provision of 35 U.S.C. § 112, first paragraph.2
Claims 3-7, 9, 10, 12, 13, 57, and 58 stand rejected under 35 U.S.C.
§ 101 as lacking utility and § 112, first paragraph, for lack of enablement based
on the finding of lack of utility.
We affirm the double patenting rejection under 35 U.S.C. § 101, the
rejections under the judicially created doctrine of obviousness-type double
patenting, and the rejection under the written description provision of 35 U.S.C.
§ 112, first paragraph. Having disposed of claims 3, 6, 7, 9, 12, 13, and 58 under
the written description provision of 35 U.S.C. § 112, first paragraph, we do not
reach the merits of the rejection of these claims under the enablement provision
of 35 U.S.C. § 112, first paragraph. We reverse the utility rejections under 35
U.S.C. § 101 and § 112, first paragraph.
2 In response to appellants’ arguments in the Brief, the examiner withdrew claims 4, 5, 10, and 57
from this ground of rejection. Supplemental Answer, page 15.
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