Appeal No. 95-4633
Application 07/135,067
was being allowed. We find these facts along with other facts set forth in our decision as showing a pattern
of activity in that appellants took voluntary actions which controlled the rate of prosecution of K/D
Applications I, II and III.
Appellants point to portions (indicated in italics) of the following passages from pages 18 and 19
of our decision contending that the prosecution of the K/M applications is not relevant to the issues on
appeal:
... We find under this record that appellants had and maintained complete
control over the prosecution of the applications in the line of cases which led to this
appeal and to the line of cases leading to the issuance of the Krueger I and Krueger
II patents.
* * *
... Moreover, double patenting has been a continuing issue during the
prosecution of [the] applications leading up to this application. The examiner has
maintained throughout the prosecution that the subject matter claimed in the Krueger-
Dyrud line of applications and the subject matter claimed in the Krueger-Meyer line of
applications leading to the Krueger I and Krueger II patents were conflicting. In the first
two Krueger-Dyrud applications (K/D Applications I and II) leading to this application,
the examiner maintained that the subject matter claimed therein and the subject matter
claimed in the applications leading to the Krueger I and Krueger II patents was directed
to a “single inventive concept” such that they were not patentably distinct from one
another. In both applications, the examiner required applicants under 37 CFR § 1.78(c)
to determine priority of invention or to provide evidence that the applications were
commonly owned. Rather than petitioning the examiner’s requirement in K/D
Application I, appellants chose to abandon the application and file KD Application
II and to allow K/M Application I to issue as the Krueger I patent.
The thrust of appellants’ argument is that the they properly and diligently prosecuted the K/D and K/M
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