Appeal No. 2005-1422 Page 7
Application No. 09/997,522
1029 (Fed. Cir. 1997). The problem in this case, as in Morris3, is that appellant
failed to make their intended meaning explicitly clear.
Accordingly, we find no error in the examiner’s interpretation of the terms
“isolated” and “purified” on this record. Therefore, we affirm the rejection of claim
4 under 35 U.S.C. § 101 as claiming the same invention as claims 1 and 3 of
U.S. Patent No. 5,686,597. As discussed supra claims 5 and 57 fall together
with claim 4.
Obviousness-type Double Patenting:
Claims 3, 4, 5, 12, 13 and 57:
Claims 3, 4, 5, 12, 13 and 57 stand rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claim
1 of U.S. Patent No. 5,869,633. Appellants acquiesce to this rejection and assert
that a Terminal Disclaimer will be filed upon an indication of allowable subject
matter. Brief, page 46. Accordingly, we affirm the rejection of claims 3, 4, 5, 12,
13 and 57 under the judicially created doctrine of obviousness-type double
patenting as being unpatentable over claim 1 of U.S. Patent No. 5,869,633.
Claims 3, 4, 5, 12, 13 and 57:
Claims 3, 4, 5, 12, 13 and 57 stand rejected under the judicially created
doctrine of obviousness-type double patenting as being unpatentable over claims
1 and 3 of U.S. Patent No. 5,686,597. Appellants acquiesce to this rejection and
assert that a Terminal Disclaimer will be filed upon an indication of allowable
3 In re Morris, 127 F.3d at 1056, 44 USPQ2d at 1029.
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