Appeal No. 2001-1820
Application No. 09/169,280
Appellants argue that for applications filed after May 28,
2000, this § 102(e)/103(a) rejection will not apply under the
Patent Act Amendments (Brief, page 7; Reply Brief, page 8). We
note that this argument is irrelevant since this application on
appeal was filed October 8, 1998.
Appellants argue that a reference cannot be applied both
under § 103(a) and for obviousness-type double patenting (Brief,
page 6; Reply Brief, page 6). Appellants also argue that
obviousness-type double patenting cannot be based on a
combination of references (id.; Brief, page 8; Reply Brief, page
8). Neither of these arguments is well taken for reasons which
follow.
Appellants have failed to provide any evidence or reasoning
why a reference which is qualified cannot be applied both under
35 U.S.C. § 103(a)(via 35 U.S.C. § 102(e)) and under the
judicially created doctrine of obviousness-type double patenting.
See In re Bartfeld, 925 F.2d 1450, 17 USPQ2d 1885 (Fed. Cir.
1991), and The Manual of Patent Examining Procedure, pp. 800-29
and 800-30, 8th ed., Aug. 2001. Appellants have also failed to
present any evidence or reasoning why an obviousness-type double
patenting rejection cannot be based on a combination of
references. As long as only the claimed subject matter from the
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