Appeal No. 1999-2381
Application No. 08/586,434
Appellants’ argument in the first full paragraph at page
9 of the brief that the issue of double patenting is moot
because the ‘433 application and their application on appeal
are commonly owned, and were filed on the same day such that
the patents would expire on the same date, is not persuasive
because the term of any patent granted on their application on
appeal could be extended under 35 U.S.C. § 154(b)(1)(C)(iii).
We note that appellants have not filed a terminal disclaimer
in this case.
Whereas we will not sustain the rejection of sole
independent claims 1 and 36 on the grounds of obviousness-type
double patenting, we will not sustain the rejection of
dependent claims 2-15, 20-28, 37-39, 43 and 45 for the same
reason. The Rejection under 35 U.S.C. § 103
Independent Claim 36
After consideration of the positions and arguments
presented by both the examiner and the appellants, we have
concluded that this rejection should not be sustained.
As noted above with respect to the rejection of claim 36
on obviousness-type double patenting, the teachings relied on
the portable phone. As such, claims 11 and 15 suffer from the
same deficiency as Takagi.
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