Appeal No. 2006-2004
Application 10/022,823
Evani et al. (Evani) 4,242,408 Dec. 30, 1980
Schrell et al. (Schrell) 5,529,585 Jun. 25, 1996
Takahashi et al. (Takahashi)1 02-127593 May 16, 1990
(published Japanese Patent Application)
Geer et al. (Geer) WO 00/11406 Mar. 2, 2000
(published World Intellectual Property Organization Application)
The examiner has advanced the following grounds of rejection on appeal:
claims 16 through 18 and 32 stand provisionally rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1 through 45 of copending
Application 10/023,489;2
claims 16 through 18, 20 through 23, 26 through 28 and 32 stand rejected under 35 U.S.C.
§ 103(a) as being obvious over Schrell in view of Evani (answer, pages 3-4);
claims 24 and 25 stand rejected under 35 U.S.C. § 103(a) as being obvious over Schrell in view
of Evani as applied to claims 16 through 18, 20 through 23, 26 through 28 above and further in
view of Takahashi (answer, page 4);
claims 16, 17, 19, 20 22, 23, 26 through 28 and 32 stand rejected under 35 U.S.C. § 103(a) as
being obvious over Schrell in view of Geer (answer, page 4); and
claims 24 and 25 stand rejected under 35 U.S.C. § 103(a) as being obvious over Schrell in view
of Geer as applied to claims 16, 17, 19, 20 22, 23, 26 through 28 and 32 above and further in
view of Takahashi (answer, page 5).
Appellants argue claims as a group with respect to the grounds of rejection in the brief
and reply brief. Thus, we decide this appeal based on appealed claims 16 and 24 as
representative of the grounds of rejection and appellants’ groupings of claims. 37 CFR
§ 41.37(c)(1)(vii) (September 2004).
In the interest of judicial economy and the pendency of this application, we reverse the
grounds of rejection under 35 U.S.C. § 103(a) and remand the application for further
consideration of the ground of rejection under the judicially created doctrine of
obviousness-type-double patenting under 37 CFR §41.50(a)(1) (2005). Accordingly, we reverse
the decision of the examiner and remand the application.
1 We refer to the translation of Takahashi prepared for the USPTO by FLS, Inc. (May 2005).
(Japanese Kokai Pat. Publication)
2 We have stated the ground of rejection using the application number stated in the final action
mailed June 22, 2004 (page 2).
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