Appeal No. 2001-1820
Application No. 09/169,280
Finally, appellants argue that obviousness-type double
patenting “redresses undue patent term extension” and thus there
is no “wrong” to redress here as any patent on the present
invention will expire on the same day as Blohowiak (Brief, pages
8-9). This argument is not persuasive. Even assuming arguendo
that any patent issuing from the present application will expire
on the same day as Blohowiak, obviousness-type double patenting
also addresses the problem of harassment by multiple assignees,
with the subsequent filing of terminal disclaimers attesting to
common ownership solving this problem. See In re Van Ornum, 686
F.2d 937, 944-948, 214 USPQ 761, 767-770 (CCPA 1982).
For the foregoing reasons and those stated in the Answer, we
determine that the examiner has established a prima facie case of
obviousness in view of the reference evidence under both section
103(a) and the judicially created doctrine of obviousness-type
double patenting. Based on the totality of the record, including
due consideration of appellants’ arguments and the absence of any
accepted terminal disclaimer, we determine that the preponderance
of evidence weighs most heavily in favor of obviousness.
Accordingly, the examiner’s rejections are affirmed.
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