Appeal No. 2001-0250 Page 12
Application No. 08/283,074
II. Double Patenting Rejection of Claims 1-4, 6-12, 17, 20-24,
54-57, and 59-64 and Obviousness-Type Double Patenting
Rejection
of Claims 18 and 73
The appellants argue that the double patenting rejection
"is a provisional double patenting rejection since the
conflicting claims have not in fact been patented." (Appeal
Br. at 18.) They also argue that the obviousness-type double
patenting rejection "is a provisional obviousness-type double
patenting rejection because the conflicting claims have not in
fact been patented." (Id.) Although the rejections were
provisional, the issuance of the '907 Application as the
Fredberg patent converted the rejections into non-provisional
rejections. See M.P.E.P. § 804.I.B (7th ed., July 1998).
Rather than contesting the rejections at oral hearing,
moreover, the appellants' representative merely stated his
intent to file a terminal disclaimer. Therefore, we affirm
the double patenting rejection of claims 1-4, 6-12, 17, 20-24,
54-57, and 59-64 and the obviousness-type double patenting
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