Appeal No. 1997-1332
Application 08/217,079
Rather than repeat the positions of the appellant and the
examiner, reference is made to the brief and the answer for the
respective details thereof.
OPINION
Turning first to the two obviousness-type double patenting
rejections, we sustain both of them. As to both rejections
appellant states at the top of page 21 of the brief "that the
filing of any necessary terminal disclaimer(s) be held in
abeyance until such time as this application otherwise recites
allowable subject matter." The appellant also asserts
substantially the same thing at page 23, the end of the brief.
It is thus apparent that appellant does not traverse the two
of these rejections on the merits. Therefore, the examiner
correctly points out at pages 8 and 9 of the answer that
appellant "does not dispute this rejection," where the examiner
discusses each of them separately.
Finally, as to these rejections, we note that "[c]laims may
be provisionally rejected for obviousness-type double patenting
over claims in a commonly assigned, copending patent application.
In re Wetterau, 356 F.2d 556, 557-58, 148 USPQ 499, 501 (CCPA
1966). This is true even if the claims in the copending
application stand rejected. Ex parte Karol, 8 USPQ2d 1771, 1773
(Bd. Pat. App. & Int. 1988).
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