Appeal No. 1999-0736
Application 08/167,581
1470-71, 43 USPQ2d 1362, 1365-66 (Fed. Cir. 1997); In re De
Blauwe, 736 F.2d 699, 705, 222 USPQ 191, 196 (Fed. Cir. 1994).3
We therefore conclude that the examiner has established a
prima facie case of obviousness as to claim 1, which has not been
rebutted by appellants.
Rejection (2)
As to this rejection, appellants state only that they will
submit a terminal disclaimer “after the board decides the
patentability of the subject claims” (brief, page 9). Since a
terminal disclaimer has not been filed, the rejection has not
been overcome, and therefore it will be summarily sustained.
Conclusion
The examiner’s decision to reject claims 1, 3, 4, 6 to 8 and
10 to 12 under 35 U.S.C. § 103(a) and on the ground of
obviousness-type double patenting is affirmed.
3 We note moreover that an affidavit or declaration submitted
for the first time with the brief would be considered only if the
requirements of 37 CFR 1.195 were met.
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