Appeal No. 2002-2114
Application 09/164,792
Claims 8-10 stand rejected under the judicially created
doctrine of obviousness-type double patenting as being
unpatentable over claims 8 and 9 of U.S. Patent No. 5,685,940
(Hopkins).
We note that, beginning on page 3 of the Brief, appellants
state that they reserve the right to file a terminal disclaimer
in the event that their appeal proves unsuccessful.
OPINION
We have carefully reviewed appellants’ Brief and Reply
Brief, and the examiner’s Answer. This review has led us to
agree with the examiner’s rejection for the following reasons.
Appellants argue that their claims concern a method for
reducing core crush using tiedown plies in the chamfer region.
(Brief, page 3.) On page 4 of the Brief, appellants argue that
prior to their present invention, no one, at least in the art of
record, and to the knowledge of appellants or assignee, used
tiedown plies as described and claimed in the chamfer area.
Appellants also state that the present application has an
effective filing date of March 15, 1996, which is prior to the
filing date of the Hopkins patent (March 20, 1996). (Brief, page
4.) Appellants state that a patent issuing on the present
application will therefore have a term shorter than the Hopkins
patent, and that there is, therefore, no extension of term to
disclaim. (Brief, page 4.)
Under the aforementioned circumstances (i.e., the Hopkins
patent being the later filed application), the question of
whether the timewise extension of the right to exclude granted by
a patent is justified or unjustified must be addressed. See MPEP
§ 804 (II)(B)(1)(b)(Aug. 2001). In so doing, we note that a two-
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