Appeal No. 1996-3816 Page 11
Application No. 08/293,331
application, the examiner should investigate and determine
whether or not the Mine patent is available as prior art with
respect to this application under 35 U.S.C. § 102(f) or (g).
In this regard, it is noted that 35 U.S.C. § 103(c) only
excludes § 102(f) or (g)
subject matter as prior art if the subject matter (e.g., Mine
patent) and the application were owned by the same person or
subject to common assignment at the time the invention was
made. See Chart II-B on page 800-14 of the Manual of Patent
Examining Procedure (MPEP) (7th ed., 1998).
CONCLUSION
To summarize, the decision of the examiner to reject
claims 54-56 under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over
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