Appeal 2007-1975
Application 10/322,770
of obviousness-type double patenting as being unpatentable over claims 1-17
of copending application SN 10/327,053 in view of the Park reference in the
first Office action, mailed Jun. 22, 2005. Since the copending application
'053 has recently issued as U.S. Patent 7,268,764, on September 11, 2007, it
is now appropriate for Appellants to respond to the rejection proffered by the
Examiner.
We note that Appellants’ response, dated September 22, 2005, stated
that "[t]he double patenting rejection is premature at this point, as there is no
indication of allowable claims in either case. Once claims are allowed, then
Applicant will be able to address this rejection." (Response 6). Since
Appellants have not had time to submit a response or to take appropriate
action, we allow Appellants that opportunity at this time.
From our review of Appellants' Brief and Reply Brief, we find no
mention or discussion of the rejection under obvious-type double patenting
which the Examiner has set forth in the Final Rejection at pages 3-5 and in
the Answer at pages 3-5. It appears that Appellants have deferred any
commentary with respect to this rejection until an indication of allowability
which occurred in the copending application on May 14, 2007. In fairness to
Appellants, we will set a 30 day non-extendable period for Appellants to file
a Supplemental Brief addressing the merits of the obviousness-type double
patenting rejection. The Supplemental Brief should be complete and contain
the totality of Appellants’ arguments so as not to refer to another document.
Additionally, the Examiner may provide a Supplemental Answer
which responds to Appellants’ response to the rejection based upon
obviousness-type double patenting. The Supplemental Answer should be
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