Appeal No. 2006-0253 4
Application No. 10/336,935
positions articulated by appellants and the examiner. As a consequence of our review, we
have made the determinations which follow.
With respect to the obviousness-type double patenting rejection of claims 1, 2, 5 and 6,
we note that appellants’ only comment in the brief is that such rejection “is deferred until
after the application is otherwise in condition for allowance” (brief, page 3). As noted on
page 6 of the supplemental answer, the examiner has taken appellants’ above-noted
comment as an acquiescence in the rejection, and we likewise do so. Accordingly, the
rejection of claims 1, 2, 5 and 6 under the judicially created doctrine of obviousness-type
double patenting as being unpatentable over claims 1-21 of Van Erden is sustained.
As for the rejection of claims 1 and 2 under 35 U.S.C.
§ 102(e) based on Van Erden, we note the examiner’s position as set forth on pages 4-5 of
the supplemental answer. More particularly, we observe that the examiner has determined
that the wall segments of the package seen in Figures 5 and 6a-6c of Van Erden which
extend beyond the attachment line of each wall to its associated zipper flange portion and
extend over the interlocking zipper profiles to a joinder at (58), each include a “frangible
portion” defined at least in part by the notches (73) which facilitate tearing away of the top
portion of the wall segments to gain access to the zipper profiles. We are in agreement
with the examiner. Appellants’ argument that the wall segments pointed to by the
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