Appeal No. 94-2097
Application 07/875,630
OBVIOUSNESS-TYPE DOUBLE PATENTING
All of the appealed claims stand provisionally rejected
under the judicially created doctrine of obviousness-type
double patenting over the claims of application Serial No.
08/009,353. The Patent and Trademark Office records indicate
that application Serial No. 08/009,353 is abandoned.
Accordingly, this rejection is moot.
All of the appealed claims further stand rejected under
the judicially created doctrine of obviousness-type double
patenting over the claims of U.S. Patent No. 5,019,382.
Appellant does not argue the merits of this rejection, i.e.,
appellant does not controvert the examiner's position that the
appealed claims define merely an obvious variation of an
invention claimed in U.S. Patent No. 5,019,382. See In re
Vogel, 422 F.2d 438,
441-42, 164 USPQ 619, 622 (CCPA 1970). Nor has appellant
favored the record with a proper, timely filed terminal
disclaimer which would overcome the rejection. See
appellant's Brief before the Board, section V, pages 19 and
20. Accordingly, we affirm the double patenting rejection in
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