Appeal 2007-1992
Application 09/318,447
DECISION
The decision of the Examiner rejecting claims 108-123, 126-137, 151-
156, 159-163, and 176-183 under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over claims 1-26 of
Hartman in view of Hafner is reversed.
We remand the application to the Examiner for consideration of a
rejection of the claims on appeal under the written description requirement
of 35 U.S.C. § 112, first paragraph. We also remand the application to the
Examiner to resolve the level of skill so that the Board may be in a better
position to review the rejections of claims 108-117, 151-156, and 176-183
are rejected under 35 U.S.C. §103(a) over Joseph in view of Teper and
further in view of Official Notice and claims 118-123, 126-137, and 159-163
under 35 U.S.C. §103(a) over Joseph in view of Teper in view of Official
Notice and further in view of Hafner. At the present time we will not treat
these rejection on the merits.
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