Appeal No. 1999-1494
Application 08/596,062
§ 101, contends that “it is not necessary to show common
relationship of inventorship and/or ownership in order to
employ U.S. Patent No. 3,408,699 in the double patenting
rejection” (answer, page 5).
The examiner, however, has failed to advance any
authority or cogent explanation for this apparently novel
interpretation of 35 U.S.C. § 101. As alluded to by the
appellants, section 804 of the Manual of Patent Examining
Procedure states that “[b]efore consideration can be given to
the issue of double patenting,
there must be some common relationship of inventorship and/or
ownership of two or more patents or applications.” Since the
record before us indicates a lack of common relationship of
inventorship and/or ownership between the instant application
and the Reynolds patent, the examiner’s concern that the two
raise a double patenting problem is unfounded.
Accordingly, we shall not sustain the standing
obviousness-type double patenting rejection of claims 1
through 9 which is predicated on the Reynolds patent.
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