Appeal No. 2003-0914 4
Application No. 09/192,713
THE REJECTION
Claims 47 through 54 stand rejected under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over the claims of Bare, U.S.
Patent No. 5,837,705.
OPINION
We have carefully considered all of the arguments advanced by the appellants and
the examiner, and agree with the examiner that the rejection of the claims on the grounds
of obviousness-type double patenting is well founded. Accordingly, we affirm the
rejection.
As an initial matter, it is the appellants’ position that, “[c]laims 47 to 54 inclusive
are grouped together.” See Brief, page 3. Accordingly, we select claim 47 as
representative of the claimed subject matter and limit our consideration thereto. See 37
CFR §1.192(c)(7)(2002).
The Double Patenting Rejection
All proper double patenting rejections rest on the fact that a patent has been issued
and a later issuance of a second patent will continue protection beyond the date of
expiration of the first patent of the very same invention claimed therein or of a mere
variation of that invention which would have been obvious to those of ordinary skill in the
relevant art. See In re Kaplan, 789 F.2d 1574, 1579-80, 229 USPQ 678, 683 (Fed.
Cir. 1986).
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