Appeal No. 95-4633
Application 07/135,067
examiner's rejection of claims 1-6 and 8-11 under the judicially created doctrine of obviousness-type
double patenting over claims 1-11 of Krueger I (Patent No. 4,547,420) or claims 1-17 of Krueger II
(Patent No. 4,795,668). We have carefully considered each of the arguments advanced by the appellants
in their request for rehearing. However, those arguments do not persuade us that our decision was in error.
We do not find, on this record, evidence to show that the PTO controlled the rate of prosecution
which led to the issuance of the Krueger I and II patents first. Appellants point to the “replacement”
rejections during the prosecution of K/D Application II wherein in the examiner applied new prior art in
the first Office action in K/D Application II from that asserted in the K/D Application I and then again
applied new prior art in the second Office action in K/D Application II. We find nothing unusual with these
“replacement” rejections since appellants voluntarily abandoned K/D Application I in favor of K/D
Application II and since the examiner’s “replacement” rejection in the second action in K/D Application
II was dictated by an amendment to claim 1 made by appellants following the first Office action. We do
not find these events as PTO controlling the rate of prosecution. The examiner handled the applications
in a timely manner and made the second Office action in the K/D Application II final in spite of the
“replacement” rejection. In any event, appellants did not appeal the examiner’s decision, but instead
abandoned the application in favor of K/D Application III in which they subsequently elected not to
prosecute the claimed subject matter
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