Appeal No. 2002-2114
Application 09/164,792
way test is to be applied only when the applicant could not have
filed the claims in a single application and there is
administrative delay. In re Berg, 140 F.3d 1428, 1431, 46 USPQ2d
1226, 1229 (Fed. Cir. 1998). We observe that at the top of page
3 of Paper No. 11, the examiner determined that a one-way test is
appropriate in the present application “[s]ince there was no
administrative delay in the prosecution of the present
application . . .”.
In applying the one-way test, the examiner concluded that
appellants’ claims 8-10 are unpatentable under the judicially
created doctrine of obviousness-type double patenting over claims
8 and 9 of Hopkins. We refer to pages 3-4 of the answer
regarding the examiner’s reasons for this conclusion. We agree
with the examiner’s conclusion for the following reasons.
With respect to appellants’ claim 8, appellants argue that
their claim 8 recites a method for reducing core crush by
contacting the chamfer of a honeycomb core with a carbon or
fiberglass tiedown ply. Appellants also argue that Hopkins
defines a different invention focused on holding the tiedown ply
still on the tool during cure. (Brief, page 4.) The examiner
correctly indicates that claim 8 of Hopkins is also directed to a
method for reducing core crush. We also find the claim 8 of
Hopkins is directed to a method involving contacting the chamfer
region of the core with a tiedown ply. See step (a) of Hopkins'
claim 8. Hence, we are unconvinced by appellants’ arguments that
their claim 8 is unpatentable over claims 8 and 9 of Hopkins.
With respect to appellants’ claim 9, appellants argue that
Hopkins’ claim 8 has no description of using a barrier film. On
page 4 of the answer, the examiner correctly points out that
Hopkins’ claim 9 teaches use of a barrier film. We agree.
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