Appeal No. 1996-4035 Page 6
Application No. 08/257,431
rejection in the context of an obviousness-type double
patenting rejection. In re Wetterau, 356 F.2d 556, 148 USPQ
499 (CCPA 1966). As explained in Wetterau, the provisional
nature of this type of rejection means that if a patent did
not issue on the related application, the provisional
rejection would evaporate. The court noted in the
obviousness-type double patenting context of that case that
certain benefits inured to applicant and the PTO through use
of such a provisional procedure, i.e., by making applicant
aware at the earliest possible time of the existence of a
double patenting issue, applicant has an opportunity to elect
which application to let issue, while prosecution in the PTO
is hastened. Second, as to the appellant's argument that no
claim has been allowed, we refer to Ex parte Karol, 8 USPQ2d
1771 (Bd. Pat. App. & Int. 1988) as to the propriety of
imposing a provisional obviousness-type double patenting
rejection based upon an application lacking allowed claims.
Lastly, we note that on November 10, 1998, Application No.
08/041,190 issued as U.S. Patent No. 5,832,699.
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