Appeal No. 1997-3729 13
Application No. 08/362,107
Accordingly, based on our consideration of the totality of the record before us, and
having evaluated the prima facie case of obviousness in view of appellants arguments and
evidence, we further conclude that the preponderance of evidence weighs in favor of
obviousness of the claimed subject matter within the meaning of § 103. See In re Oetiker,
977 F.2d 1443, 1445, 24 USPQ2d 1443, 1444 (Fed. Cir. 1992).
The Obviousness-Type Double Patenting Rejections
The sole issue raised by the appellants in the obviousness-type double patenting
rejection is that there is no teaching, “to select grains from there such as instantly claimed
and then utilize the antifoggants of Formula I and Formula II with these grains.” See Brief,
page 7 and generally the Reply Brief, pages 3 and 4. There is no argument and indeed the
appellants concede that the grains “include those such as claimed in the instant invention.”
See Reply Brief, page 3.
All proper double patenting rejections rest on the fact that a patent has been issued
and a later issuance of a second patent will continue protection beyond the date of
expiration of the first patent of the very same invention claimed therein or of a mere
variation of that invention which would have been obvious to those of ordinary skill in the
relevant art. See In re Kaplan, 789 F.2d 1574, 1579-80, 229 USPQ 678, 683 (Fed.
Cir. 1986).
Our analysis of the examiner's rejection of claim1 under the doctrine of judicially
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