Appeal No. 2001-0550
Application No. 09/030,792
Reference is made to appellants’ brief (Paper No. 9) and to
the examiner’s answer (Paper No. 10) for the respective positions
of appellants and the examiner regarding the merits of these
rejections.
Discussion
The double patenting rejections
Considering first the double patenting rejection based on
U.S. Patent 5,616,120, appellants expressly state on page 13 of
the brief that “[w]hile Appellants do not fully agree that such a
rejection is appropriate, they will submit an appropriate
Terminal Disclaimer to obviate the same upon an indication of
allowance of claims commensurate in scope with Claims 1, 2, and
9-14.”
As to the double patenting rejection based on U.S. Patent
6,074,358, appellants expressly state on page 13 of the brief
that “[they] will submit an appropriate Terminal Disclaimer to
obviate the same when Claims 24-40 of Appellant’s [sic,
issued as U.S. Patent 6,074,358, thus removing the “provisional”
status of the rejection. In addition, because the “provisional”
rejection in the final rejection was founded on all the claims of
the ‘713 application (i.e., claims 24-40), we likewise now
consider the standing rejection based on the ‘358 patent to be
founded on all the claims thereof (i.e., patent claims 1-9).
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