Appeal No. 1999-0058
Application No. 08/701,878
appealed claims 1 through 4, 7 through 14, and 16 through 23 as
unpatentable over Bournonville.
Provisional Obviousness-Type Double Patent Rejection
The appellants submit that the examiner's provisional
obviousness-type double patenting rejection is premature because
allowable subject matter has not been indicated in either the
present application or the conflicting application, i.e.
application 08/239,062. On this point, the examiner states:
"Since appellants make no arguments with respect to the
provisional double patenting rejection, the examiner's position
in the final rejection stands." (Examiner's answer, page 7.)
The appellants' position has no merit. That allowable
subject matter has not been indicated in either the present
application or the conflicting application is of no moment.6
This is exactly the reason why the appealed claims were
provisionally rejected. Under these circumstances, we summarily
affirm the examiner's provisional obviousness-type double
patenting rejection.
6 See MPEP § 804 (Jul. 1998).
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