Appeal No. 97-3453 Page 12
Application No. 08/475,374
Double Patenting of Claim 15
The examiner provisionally rejects claim 15 under the
nonstatutory, judicially created doctrine of obviousness-type
double patenting as unpatentable over claim 15 of Application
Serial No. 08/475,062. (Final Rejection at 4.) A timely
filed terminal disclaimer meeting 37 C.F.R. § 1.321(c) may be
used to overcome a rejection based on a nonstatutory double
patenting ground provided the conflicting application or
patent is shown to be commonly owned with the instant
application. See 37 C.F.R. § 1.130(b).
The appellants state their intent to file a terminal
disclaimer. (Supplemental Appeal Br. at 4.) At oral hearing,
their representative emphasized the appellants’ intent to file
the terminal disclaimer. Therefore, we affirm the rejection
pro forma.
CONCLUSION
To summarize, the decision of the examiner to reject
claims 2, 5, and 11-15 under 35 U.S.C. § 103 is reversed.
His decision to reject claim 15 provisionally under the
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