Appeal No. 2006-3280
Application No. 09/874,152
20. Accordingly, we will not sustain the Examiner’s obviousness
rejection of claims 11 through 20.
II. Under the Judicially Created Doctrine of Obviousness-type
Double Patenting, Is the Rejection of Claims 1, 11, 21 and 28 as
being unpatentable over Claim 1 of Marks Proper?
With regard to claims 1, 11, 21 and 28, the Examiner takes
the position that cited claims are broader than claim 1 of Marks,
and they are therefore not patentably distinct from the cited
claim. In response, Appellants argue that the cited claims are
patentably distinct from claim 1 of Marks. Particularly, the
cited claims in the present application require an intelligent
peripheral that places a call to a subscriber line to determine
if the subscriber line is busy. Appellants submit that the cited
limitation is not disclosed in claim 1 of Marks, which requires
that such a call be made to the subscriber line only after it has
already been determined that the subscriber line is not busy. We
agree with Appellants.
It is therefore our view, after consideration of the record
before us, that the evidence relied upon and the level of skill
in the particular art would not have suggested to the ordinarily
skilled artisan the invention as set forth in claims 1, 11, 21
and 28. Accordingly, we will not sustain the Examiner’s
obviousness double patenting rejection of claims 1, 11, 21 and
28.
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