Appeal No. 1999-2131 Page 6
Application No. 08/971,504
patenting. See In re Van Ornum, 686 F.2d 937, 942-43, 214
USPQ 761, 766 (CCPA 1982) and Ex parte Davis, 56 USPQ2d 1434,
1435 (Bd. Pat. App. & Int. 2000). For this reason we treat
both double patenting rejections as being "obviousness-type",
i.e., both are considered merged into a single rejection on
the same ground. The appellants do not argue the merits of
the "obviousness-type" double patenting rejection; rather they
offer to submit a terminal disclaimer to overcome it (brief,
page 10). Since the appellants have not yet provided an
acceptable terminal disclaimer, we summarily sustain the
examiner's rejection on this ground. The appellants may still
overcome this ground of rejection by submitting an acceptable
terminal disclaimer.
--The obviousness rejection as being unpatentable
over Drake in view of Du Mond--
We will not sustain the examiner's rejection of claims 1
through 74 under 35 U.S.C. § 103.
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