Appeal 2007-1653
Application 10/791,945
Appellants explicitly stated that they did not address the double
patenting rejection present in the application (Br. 5). We therefore affirm the
Examiner’s obviousness-type double patenting rejection of claims 1, 12, 16,
27, and 31.5
CONCLUSION OF LAW
We conclude that Appellants have not shown that the Examiner erred
in rejecting claims 1, 12, 16, 27, and 31 on double patenting grounds. Claims
1, 12, 16, 27, and 31 are not patentable. We conclude that Appellants have
shown the Examiner erred in rejecting claims 1-7, 9-11, 13-22, 24-26 and
28-31 under 35 U.S.C. § 102, and claims 8, 12, 23 and 27 under 35 U.S.C. §
103. On the record before us, claims 1-31 have not been shown to be
unpatentable with regard to 35 U.S.C. §§ 102 and 103.
DECISION
The Examiner’s rejection of claims 1-7, 9-11, 13-22, 24-26 and 28-31
under 35 U.S.C. § 102, and of claims 8, 12, 23 and 27 under 35 U.S.C. § 103
is reversed. The Examiner’s double patenting rejection of claims 1, 12, 16,
27, and 31 is affirmed. Because we have affirmed at least one rejection of
some of the claims, we affirm-in-part.
5 As noted supra, the conflicting application has subsequently issued as U.S.
Patent No. 7,164,732; therefore, the double patenting rejection of record is
no longer provisional.
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