Ex parte Nilssen

Board of Patent Appeals and Interferences

Feb 7, 2000

08394251 (B.P.A.I. Feb. 7, 2000)

Application for patent filed February 24, 1995,1
entitled "Compact Screw-In Fluorescent Lamp," which is a
continuation-in-part of Application 07/579,569, filed
September 10, 1990, now abandoned, which is a continuation-in-
part of Application 06/787,692, filed October 15, 1985, now
abandoned, which is a continuation of Application 06/644,155,
filed August 27, 1984, now abandoned, which is a continuation
of Application 06/555,426, filed November 23, 1983, now
abandoned, which is a continuation of Application 06/178,107,
filed August 14, 1980, now abandoned.
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THIS OPINION WAS NOT WRITTEN FOR PUBLICATION
The opinion in support of the decision being entered
today (1) was not written for publication in a law
journal and (2) is not binding precedent of the Board.
_______________
Paper No. 8
UNITED STATES PATENT AND TRADEMARK OFFICE

BEFORE THE BOARD OF PATENT APPEALS
AND INTERFERENCES

Ex parte OLE K. NILSSEN

Appeal No. 1997-2856
Application 08/394,2511

ON BRIEF

Before THOMAS, BARRETT, and RUGGIERO, Administrative Patent
Judges.
Appeal No. 1997-2856
Application 08/394,251
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BARRETT, Administrative Patent Judge.
DECISION ON APPEAL
This is a decision on appeal under 35 U.S.C. § 134 from
the final rejection of claims 1-6 and 8-31.
We affirm-in-part.
BACKGROUND
The disclosed invention is directed to a U-shaped
fluorescent lamp mounted on a screw base for inserting into a
lamp socket for an ordinary incandescent light bulb.
Claim 5 is reproduced below.
5. An arrangement comprising:
a screwbase operative to be screwed into a lamp
socket of a type functional to receive and hold an
ordinary household incandescent light bulb; the screw-
base being otherwise characterized by including (i) base
terminals, (ii) a threaded portion that is substantially
of cylindrical shape, thereby to define a central
screw-base axis; the lamp socket having a pair of socket
terminals at which is provided an AC power line voltage
such as that present at an ordinary electric utility
power line; this AC power line voltage being applied to
the base terminals whenever the screw-base is indeed
screwed into the lamp socket;
a fluorescent lamp including a pair of
thermionic cathodes and a pair of lamp terminals; the
fluorescent lamp being otherwise characterized by having
a central lamp axis and at least two cylindrical lamp
sections, each having a cylindrical axis disposed
parallel to the central lamp axis; one of the thermionic
cathodes being disposed at one end of each of the
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Application 08/394,251
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cylindrical lamp sections; the other ends of the
cylindrical lamp sections being joined together via a
transversely disposed lamp section; said transversely
disposed lamp section having a maximum dimension no
longer that the maximum dimension of one of said
cylindrical lamp sections; the fluorescent lamp being
further defined by exhibiting symmetry with respect to a
flat plane parallel to the central lamp axis;
an electronic sub-assembly having input
terminals connected with the base terminals and output
terminals connected with the lamp terminals; and
a structure integrally and rigidly combined with
the screw-base and operative to hold together the
electronic sub-assembly and the fluorescent lamp, such
that the central screw-base axis coincides with the
central lamp axis.
The Examiner relies on the following prior art:
Fodor 2,139,815 December 13, 1938
Abernathy 2,369,767 February 20,
1945
Greene et al. (Greene) 2,923,856 February 2, 1960
Genuit 3,263,122 July 26, 1966
Skwirut et al. (Skwirut) 4,300,073 November 10,
1981
(filed February 13,
1979)
Nilssen (Nilssen '637) 5,164,637 November 17, 1992
Dale et al. (Dale), Conversion of incandescent lamp
sockets to fluorescent in the home market, Lighting &
Design Application, March 1976, pages 18-23.
The specification stands objected to, and claims 19-21
and 26-31 stand rejected under 35 U.S.C. § 112, first
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Application 08/394,251
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paragraph, as failing to provide an enabling disclosure and
failing to provide an adequate written description.
Claims 5, 6, 8-11, 15, and 18-31 stand rejected under
35 U.S.C. § 103 as being unpatentable over Skwirut in view of
either Dale or Abernathy or Greene.
Claims 1, 2, 10, and 18 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Abernathy and Fodor.
Claims 12-14, 16, and 17 stand rejected under 35 U.S.C.
§ 103 as being unpatentable over Skwirut, Dale, Abernathy, and
Greene as applied in the rejection of claim 10, further in
view of Genuit.
Claims 1-4 stand rejected under 35 U.S.C. § 103 as being
unpatentable over Skwirut, Dale, Abernathy, Greene, and
Genuit.
Claims 3, 4, 12, 13, and 17 stand rejected under the
judicially created doctrine of double patenting as being
unpatentable over claims 6 and 7 of Nilssen '637 in view of
Abernathy and Skwirut. This statement of the rejection in the
Final Rejection and the Examiner's Answer appears to be what
was intended, while the discussion that "[c]laims 3, 4, 12, 13
and 17 of Nilssen '637 disclose an electronic ballast
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Application 08/394,251
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sub-assembly" (Final Rejection, page 11) erroneously switches
the claims of the application with the claims of the patent.
We refer to the Final Rejection (Paper No. 4) (pages
referred to as "FR__") and the Examiner's Answer (Paper No. 7)
(pages referred to as "EA__") for a statement of the
Examiner's position and to the Appeal Brief (Paper No. 6)
(pages referred to as "Br__") for Appellant's arguments
thereagainst.
OPINION
Analysis limited to arguments in Appellant's brief
We confine our analysis to issues and differences argued
in the brief. See 37 CFR § 1.192(c)(8)(iv) (1995) ("For each
rejection under 35 U.S.C. 103, the argument shall specify the
errors in the rejection and, if appropriate, the specific
limitations in the rejected claims which are not described in
the prior art relied on in the rejection, and shall explain
how such limitations render the claimed subject matter
unobvious over the prior art."). Arguments not made are
considered abandoned. Cf. In re Baxter Travenol Labs.,
952 F.2d 388, 391, 21 USPQ2d 1281, 1285 (Fed. Cir. 1991)
("It is not the function of this court to examine the claims
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Application 08/394,251
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in greater detail than argued by an appellant, looking for
nonobvious distinctions over the prior art."); In re Wiechert,
370 F.2d 927, 936, 152 USPQ 247, 254 (CCPA 1967) ("This court
has uniformly followed the sound rule that an issue raised
below which is not argued in this court, even if it has been
properly brought here by a reason of appeal, is regarded as
abandoned and will not be considered. It is our function as a
court to decide disputed issues, not to create them.");
In re Wiseman, 596 F.2d 1019, 1022, 201 USPQ 658, 661 (CCPA
1979) (arguments must first be presented to the Board before
they can be argued on appeal). It is noted that it is
improper for an appellant to raise issues for the first time
in any request for rehearing, because a request for rehearing
is limited to reconsideration of points that were made in the
brief. See 37 CFR § 1.197(b) ("The request for
reconsideration shall state with particularity the points
believed to have been misapprehended or overlooked in
rendering the decision and also state all other grounds upon
which reconsideration is sought.").
Lack of enablement and/or written description
Appeal No. 1997-2856
Application 08/394,251
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The Examiner states that there is no support in the
specification as originally filed for the limitations:
(1) the distance between adjacent cylindrical sections is not
larger than half the dimension across either of the
cylindrical sections (claims 19, 20, 21 (by virtue of its
dependency), 26, 27, and 28-31 (by virtue of their
dependencies)); and (2) the maximum diameter of the
fluorescent lamp being no larger than twice the maximum
diameter of the screw base (claim 31). The Examiner states
that the drawings do not provide support since the drawings
are not to scale (FR2).
It is clear that the Examiner's rejection is based on
lack of written description under 35 U.S.C. § 112, first
paragraph, not on lack of an enabling disclosure of how to
make a lamp with these limitations, because the limitations
themselves are enough to allow one to make and use. The
written description rejection under § 112, first paragraph, is
used to reject when a claim is amended to recite elements
thought to be without support in the original disclosure. See
In re Rasmussen, 650 F.2d 1212, 1214-15, 211 USPQ 323, 326
(CCPA 1981). "Satisfaction of the description requirement
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insures that subject matter presented in the form of a claim
subsequent to the filing date of the application was
sufficiently disclosed at the time of filing so that the prima
facie date of invention can fairly be held to be the filing
date of the application." Vas-Cath, Inc. v. Mahurkar, 935
F.2d 1555, 1562, 19 UPSQ2d 1111, 1115 (Fed. Cir. 1991), citing
In re Smith, 481 F.2d 910, 914, 178 USPQ 620, 623 (CCPA 1973).
Appellant argues that any drawing supposed to depict a
physical object must be drawn to some specific scale or the
drawing will not resemble the object it is supposed to depict
(Br5). Appellant argues that the maximum diameter limitation
can be determined by direct measurements on figure 1, where
"the larger of the two inner diameters is 23 millimeters,
while the smaller of the two inner diameters is over 12
millimeters" (Br6).
"[D]rawings alone may be sufficient to provide the
'written description of the invention' required by § 112,
first paragraph." Vas-Cath, 935 F.2d at 1564, 19 UPSQ2d at
1117. However, drawings are not manufacturing drawings and
are not necessarily drawn to scale. See In re Wilson,
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Application 08/394,251
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312 F.2d 449, 454, 136 USPQ 188, 192 (CCPA 1963) ("Patent
drawings not working drawings ... [and arguments are not
persuasive when based on a] drawing obviously never intended
to show the dimensions of anything."); In re Wright,
569 F.2d 1124, 1127, 193 USPQ 332, 335 (CCPA 1977)
("[Applicant] does not disclose that his drawings are to
scale. Absent any written description in the specification of
quantitative values, arguments based on measurement of a
drawing are of little value."). It is often the case that
elements of the drawing are exaggerated in one or more
dimensions to emphasize the salient features of the invention.
This does not interfere with identifying what the drawing
depicts.
Although not argued by Appellant, the limitation that the
distance between adjacent cylindrical sections is not larger
than half the dimension across either of the cylindrical
sections is found in original claim 19 of the application as
filed. Thus, there is express written description support
without need to resort to the drawings. The Examiner errs as
to this limitation. The rejection of claims 19-21 and 26-31
for this limitation is reversed.
Appeal No. 1997-2856
Application 08/394,251
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The relationship that the maximum diameter of the
fluorescent lamp is no larger than twice the maximum diameter
of the screw base is not described expressly or impliedly in
the original specification. Our photocopy of the drawings,
which should differ only in scale, shows a dimension across
the lamp 11 of 0.92 inches (23.37 mm) and a dimension across
the top of the thread 17 of 0.49 inches (12.45 mm), which
agrees with Appellant's measurements of 23 and 12 millimeters,
respectively. Nevertheless, the ratio is so close that one of
ordinary skill in the art would not have appreciated that this
relationship was an essential part of the invention from
looking at the drawing. The relationship could be mere
happenstance in the way the drawings were prepared that
Appellant wants to rely on to distinguish the claims.
Therefore, we sustain the rejection of claim 31.
Obviousness
Claims 5, 6, 8-11, 15, and 18-31
Appellant relies on the limitation in claim 5 that "the
other ends of the cylindrical lamp sections being joined
together via a transversely disposed lamp section ... having a
maximum dimension no longer than the maximum dimension of one
Appeal No. 1997-2856
Application 08/394,251
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of said cylindrical lamp sections." Appellant argues that
"Skwirut's 'ends' are joined together by way of a doubly
curved lamp section having a maximum dimension substantially
longer than that of one of the two pertinent cylindrical
sections" (Br7).
The Examiner responds (EA15): "The maximum diameter
dimension of the transversely disposed section of Skwirut is
no larger than the maximum diameter dimension of the
cylindrical lamp section. Even the maximum length of the
transverse section is substantially smaller than the length of
the cylindrical lamp section."
One problem is that "a maximum dimension" of the
transversely disposed lamp section and "the maximum dimension"
of the cylindrical lamp sections are not defined. While,
perhaps, the recitation that a maximum dimension of the
transverse lamp section is "no longer" than the maximum
dimension of the cylindrical lamp section could be interpreted
as implying a length dimension, the term "longer" could also
refer to the length of the dimension. We interpret the
"maximum dimension" to be the greatest dimension for the
transverse lamp section and the cylindrical lamp section.
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Application 08/394,251
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Nothing requires that the "maximum dimension" refer to the
same dimension for the transverse lamp section and the
cylindrical lamp section; e.g., it would be possible to
compare a length with a diameter. The Examiner's
interpretation based on the diameter dimension is inconsistent
with the claim language because the diameters are clearly not
the "maximum dimension" of the transverse lamp section or the
cylindrical lamp section in Skwirut. The Examiner's finding
that the maximum length of the transverse section is smaller
than the length of the cylindrical lamp section is clearly
erroneous; the length must be measured along the lamp and the
traverse lamp section is approximately twice as long as one of
the cylindrical lamp sections.
The Examiner also reasoned (FR6-7): "As to placing a
sharp bend in the tube [of Skwirut] to make a U-shape, it is
very well known that tubes for gas discharge tubes can be bent
to any desired shape and to bend the tube to a single U-shape
with a sharp bend would have been obvious to one of ordianry
[sic] skill in the art not only given the well known fact that
tubes can be bent to that desired [shape] but especially given
that of Skwiruit [sic] who teaches multiple U-shapes."
Appeal No. 1997-2856
Application 08/394,251
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Skwirut discloses that tubular U-shaped bulbs were known
in the prior art (e.g., col. 1, lines 31-32). Skwirut's lamp
has a U-shape which is then bent in half to form another
U-shape. In view of these express teachings, it would have
been obvious to use a simple U-shaped lamp in Skwirut if one
did not desire the added light provided by the extra lengths
of straight lamp sections. Such a U-shaped lamp would meet
the maximum dimension limitation of claim 5 as evidenced by
comparing U-bent segment 31a in figure 7 with straight segment
24a in figure 5 of Skwirut. We do not think Appellant can
seriously claim to have invented the U-shaped lamp having a
screw-base, which is all that claim 5 appears to recite. For
these reasons, we conclude that claim 5 would have been
obvious. Claims 6 and 8 have not been separately argued and,
therefore, fall with claim 5. The rejection of claims 5, 6,
and 8 are sustained.
As to claims 10 and 11, Appellant argues that claim 10/11
recites that "a flat plane disposed perpendicular to the
central axis and intersecting one of the cylindrical lamp
segments anywhere along its total length creates a
cross-sectional pattern that ... includes nothing but cross-
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Application 08/394,251
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sections of substantially identical cylindrical lamp segments"
(emphasis added). It is noted that this limitation appears in
claim 10. With respect to similar limitations in claim 9,
Appellant argues (Br7): "[A plane] at any location along the
central lamp axis [in Skwirut] will clearly intersect
something more than 'cylindrical lamp sections and any
material enclosed within these cylindrical lamp sections.'
For instance, that plane will definitely intersect cover C.
Also, in most locations, it will also intersect ballast 15;
and, in some locations, it will intersect U-bent segment 31 or
tipped-off segment 32."
The lamp in Skwirut, modified to provide a U-shaped lamp
as discussed in connection with claim 5, would meet the
limitations of claims 9 and 10, except, arguably, for the
cover and the ballast.
The Examiner has stated that it would have been obvious
to remove the protective cover in Skwirut because such a
covering is unnecessary (FR6; EA8; EA15). We agree. The
cover is not required for the lamp to function and a plane
would not intersect the cover if the cover was not present.
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Application 08/394,251
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As to intersecting the ballast 15, figure 6 of Skwirut
discloses an embodiment with the ballast in the base so that a
plane would not intersect the ballast as it would in figure 1.
For the reasons stated above, we conclude that claims 9
and 10 would have been obvious. The rejection of claims 9 and
10 is sustained. The limitations of dependent claims 11, 15,
18, and 19 have not been separately argued and, therefore,
these claims fall with claim 10. The rejection of claims 11,
15, 18, and 19 is sustained.
Independent claims 20 and 27 have not been separately
argued and do not include limitations similar to those
Appellant has argued with respect to claims 5 and 10.
Accordingly, the rejection of claims 20, 21, and 27-31 is
sustained pro forma. In addition, we note our agreement with
the Examiner's position (FR7) that the distance between the
cylindrical lamp sections would have been obvious to one of
ordinary skill in the art. Skwirut discloses decreasing the
radius of curvature of the U-bends to reduce the spacing
between the tubular leg sections when a ballast is not located
in the middle of the lamp (col. 8, lines 38-43), which permits
"tighter bundling" of the tubular leg segments to reduce the
Appeal No. 1997-2856
Application 08/394,251
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width (col. 8, lines 55-61). One of ordinary skill in the art
would have considered the spacing a lamp parameter to be
varied at will.
Independent claim 22 has not been separately argued but
includes a limitation similar to claim 10. For the reasons
stated with respect to claim 10, the rejection of claim 22 and
its dependent claims 23-26 is sustained.
Claims 1, 2, 10, and 18
Appellant argues that Abernathy is missing more than a
U-shaped lamp structure. Appellant argues that Abernathy does
not disclose that the lamp is adapted to be mounted in a
socket designed to accept an "ordinary household incandescent
light bulb" as recited in claim 1. The Examiner points out
(EA15) that Abernathy discloses in the first sentence that the
device is "adapted to be mounted in an ordinary household
outlet" (page 1, col. 1, lines 3-4). More clearly, we note
that Abernathy discloses that "the entire device may be
screwed into an ordinary lighting socket and operated
therefrom" (page 2, col. 1, lines 47-49). Appellant's
arguments (Br8) that the drawings do not suggest an ordinary
screw base and that a vacuum tube of sufficient volt-ampere
Appeal No. 1997-2856
Application 08/394,251
Appellant "accuses Examiner of intellectual2
dishonesty" for his statement because the problem is not found
in either reference. Appellant is reminded of 37 CFR § 1.3
which requires applicants to conduct their business with
"decorum and courtesy" and that papers in violation of this
order will be returned.
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capacity could not have been made small enough in 1942 to fit
into an ordinary socket are not persuasive in view of the
express disclosure in Abernathy.
Appellant argues that Abernathy does not have an enabling
disclosure. Patents are presumed to be valid and, thus, to
have an enabling disclosure. Moreover, patents are good for
everything they teach one of ordinary skill in the art. One
of ordinary skill in the art was taught to make a lamp with a
high frequency source that could fit in an ordinary lamp
socket.
Appellant argues that there is no factual support in
Abernathy or Fodor for the Examiner's reason to modify
Abernathy with a U-shaped tube structure to "prevent the leads
from casting a shadow outside the lamp" (FR8). Appellant2
argues that neither Abernathy nor Fodor suggests such a
problem and the diameter of the lead 27 is so small compared
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Application 08/394,251
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to the diameter of tube 25 that it would be impossible to
discern any shadow (Br9).
It is true that no shadow problem is expressly disclosed
and the Examiner has not demonstrated that one of ordinary
skill in the art would have been aware of a shadow problem.
Nevertheless, Fodor shows that other lamp shapes may be used
and, absent some argument why Abernathy is limited to a
straight lamp, this is all the motivation that is required to
replace the straight lamp in Abernathy with one of the shapes
in Fodor.
Appellant argues that Abernathy's envelope is needed,
referring to page 2, column 1, lines 23-27 (Br10). However,
we note that several lines below that portion, Abernathy
expressly states that "[t]he envelope 12 may even be omitted
entirely in some cases" (page 2, col. 1, lines 31-32).
Appellant's argument is not persuasive.
Finally, Appellant argues that the feature of "two
straight cylindrical ... sections disposed parallel to each
other" is not disclosed or suggested by either reference
(Br10). The Examiner responds (EA15-16): "Fodor shows that
Abernathy can be U-shaped with parallel or non-parallel tube
Appeal No. 1997-2856
Application 08/394,251
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sections and in the process the leads to the base are shorten
[sic]. Fodor shows that almost any shape can be employed just
as long as the ends of the tube are formed in the base of the
lamp so as to shorten leads thereto, etc. These are clear
advantages taught by Fodor as recited in the final rejection
and would have motivated one of ordinary skill in the art."
We agree with the Examiner that a simple U-shape having
two parallel straight sections would have been obvious to one
of ordinary skill in the art. The fact that such a shape is
not expressly shown in Fodor is not persuasive of
nonobviousness. One of ordinary skill in the art must be
presumed to know something about the art apart from what the
references expressly disclose. In re Jacoby, 309 F.2d 513,
516, 135 USPQ 317, 319 (CCPA 1962). All of the letters or
symbols in Fodor are inherently U-shaped because they must
begin and end on the same plane. A simple letter "I" or
number "1" would have a U-shape and is within the scope of the
teachings of Fodor.
For the reasons stated above, we consider Appellant's
arguments unpersuasive, and the rejection of claims 1, 2, 10,
and 18 is sustained.
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Application 08/394,251
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Claims 12-14, 16, and 17
Appellant argues that the Examiner's finding that
"Skwirut lacks the electronic high frequency ballast being a
half-bridge type" (FR9) is not understood since no such
ballast is being claimed (Br11). The Examiner responds that
"[t]he half-bridge forms the basis of Appellant's invention"
(EA16).
We agree with Appellant that the Examiner's action should
address claimed differences. The limitations of the claims do
not appear to be inherent characteristic features of a high
frequency ballast of a half-bridge type.
With respect to claim 12, the Examiner found that "[t]he
ballast of Dale clearly conducts current pulses through the
transistor at a frequency equal to the output frequency and
whose duration is less that 1/2 the period of the output"
(FR9). Appellant argues that the feature of claim 12 is not
disclosed by Dale as the Examiner contends. The Examiner
responds that the feature of the current pulses being less
than 1/2 the period of the output "occurs in the ballast
structure of Dale" (EA16).
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Application 08/394,251
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Dale states that direct current is used to drive a
transistor at high frequency which imposes a high frequency AC
current on the secondary of the transformer (page 20 under
"Solid-state ballast"). This teaches that the transistor is
driven at high frequency instead of "at a periodic rate equal
to that of the alternating voltage" as recited in claim 12
even if it is true that "each current pulse having a duration
distinctly shorter than half of that of a complete cycle of
the alternating voltage" because of its high frequency. The
Examiner does not state where the limitations of claim 12 are
otherwise taught by the references, including Genuit, and thus
has failed to establish a prima facie case of obviousness.
The rejection of claim 12 is reversed.
Appellant argues that the features of claims 13, 16, and
17 are "neither disclosed nor suggested by any of the applied
references" (Br11; Br12) and that these features are "not
addressed by the Examiner in his Office Action" (Br11; Br12).
We do not find where the Examiner addresses the specific
limitations of claims 13, 16, and 17. Nevertheless, we have
examined the references for what they clearly disclose.
Appeal No. 1997-2856
Application 08/394,251
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We find that none of Skwirut, Dale, Abernathy, Greene, or
Genuit discloses a DC voltage having a constant absolute
magnitude distinctly larger than the absolute peak magnitude
of the AC power line as recited in claims 13 and 17.
Therefore, the rejection of claims 13 and 17 is reversed.
Genuit discloses on its face an inverter with a pair of
terminals across which exists a DC voltage and a
series-connected pair of transistors as recited in claim 14.
It would have been obvious to use the inverter arrangement of
Genuit in Skwirut to achieve the current limiting advantages
of Genuit. Therefore, the rejection of claim 14 is sustained.
We find that none of Skwirut, Dale, Abernathy, Greene, or
Genuit discloses a pair of terminals across which exists a DC
voltage and a series-connected pair of capacitors as recited
in claim 16. Therefore, the rejection of claim 16 is
reversed.
Claims 1-4
Appellant refers to his arguments at sections (j) through
(n) of the brief.
Sections (j) through (n) deal with the rejection of
claims 12-14, 16, and 17. Claim 3 is similar to claim 13.
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Claim 4 contains limitations similar to claims 14 and 12
together. We reverse the rejection of claims 3 and 4 over
Skwirut, Dale, Abernathy, Greene, and Genuit for the reasons
stated in reversing the rejection of claims 12 and 13 over the
same combination of references.
Appellant further argues that the Examiner's finding that
Skwirut lacks a half-bridge ballast fails to make sense
(Br13). We agree for the reasons stated with respect to the
rejection of claim 12-14, 16, and 17.
The rejection of claims 1 and 2 is sustained for the
reasons discussed with respect to claims 5 and 10.
Obviousness-type double patenting
An obviousness-type double patenting rejection prevents
an applicant from extending his patent term beyond statutory
limits where an application claims merely an obvious variant
of the claims in a prior patent. See In re Goodman,
11 F.3d 1046, 1052, 29 USPQ2d 2010, 2015 (Fed. Cir. 1993);
In re Vogel, 422 F.2d 438, 441, 164 USPQ 619, 622 (CCPA 1970).
Thus, we examine the claims to determine whether one defines
merely an obvious variation of the other.
Appeal No. 1997-2856
Application 08/394,251
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Claims 6 and 7 of Nilssen '637 are directed to an
electronic ballast, not to a fluorescent lamp structure as
claimed in the present application. The claims of the present
application are not to essentially the same invention and are
not trying to claim merely an obvious variant of the claims in
Nilssen '637. An obviousness-type double patenting rejection
is improper in this case. Moreover, since claims 3 and 4
depend on claim 1 and claims 12, 13, and 17 depend on claim
10, it is not apparent why the Examiner has rejected the
dependent claims without rejecting the independent claims from
which they depend. The rejection of claims 3, 4, 12, 13, and
17 is reversed.
Appeal No. 1997-2856
Application 08/394,251
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CONCLUSION
The rejections of claims 1, 2, 5, 6, 8-11, 14, 15, and
18-31 are sustained.
The rejections of claims 3, 4, 12, 13, 16, and 17 are
reversed.
No time period for taking any subsequent action in
connection with this appeal may be extended under 37 CFR
§ 1.136(a).
AFFIRMED-IN-PART
JAMES D. THOMAS )
Administrative Patent Judge )
)
)
)
) BOARD OF PATENT
LEE E. BARRETT ) APPEALS
Administrative Patent Judge ) AND
) INTERFERENCES
)
)
)
JOSEPH F. RUGGIERO )
Administrative Patent Judge )
Appeal No. 1997-2856
Application 08/394,251
We use the address "408 Caesar Drive" because we are3
aware that this address appeared in other appeals. The street
address of record is just "Caesar Drive."
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Ole K. Nilssen
408 Caesar Drive3
Barrington, IL 60010