Appeal No. 1999-1417
Application 08/268,730
The examiner stated that the double patenting rejection would be withdrawn “so
long as the Terminal Disclaimer is found to be complete” (Advisory Action mailed August
12, 1996, Paper No. 29). Apparently, that is the case because the examiner does not
repeat or refer to the rejection of claim 74 under the judicially created doctrine of
obviousness-type double patenting in the Examiner’s Answer. Nevertheless, based on our
review of the record, it does not appear that the Terminal Disclaimer has been processed
by the PTO. On return of this application to the Examining Group, we recommend that the
examiner review the Terminal Disclaimer dated June 27, 1996, and take steps to ensure
that it is processed in the file.
Conclusion
In conclusion, for the reasons set forth in the body of this opinion, we reverse the
examiner’s decision rejecting claim 74 under 35 U.S.C. § 103. We affirm the examiner’s
decision rejecting claims 76 through 80 under 35 U.S.C. § 112, first paragraph. On return
of this application to the Examining Group, we recommend that the examiner review the
Terminal Disclaimer dated June 27, 1996, and take steps to ensure that it is processed in
the file. Accordingly, the examiner’s decision is affirmed-in-part.
No time period for taking any subsequent action in connection with this appeal may
be extended under 37 CFR § 1.136(a).
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