Appeal No. 2004-0746 Page 4
Application No. 09/163,588
to the brief (Paper No. 22, filed January 23, 2002) and reply brief (Paper No. 24, filed
May 13, 2002) for the appellant's arguments thereagainst.
OPINION
In reaching our decision in this appeal, we have given careful consideration to
the appellant's specification and claims, to the applied patents, and to the respective
positions articulated by the appellant and the examiner. As a consequence of our
review, we make the determinations which follow.
The six rejections based upon the judicially created doctrine of double patenting
We sustain the six rejections of claims 1 to 11, 13, 14, 16 to 23, 27 to 32, 35 to
39 and 41 to 55 under the judicially created doctrine of double patenting.
The appellant argues (brief, p. 35; reply brief, p. 5) that the rejections based on
the judicially created doctrine of double patenting are not justified for the present
application. The appellant believes a double patenting rejection is improper, since any
patent issued from the present application will have a term that will not exceed any of
the terms of the patents cited by the Examiner. Although the Examiner asserts that
"possible harassment by multiple assignees" is a sufficient justification for a double
patenting rejection (see page 8 of answer), the appellant asserts that the possibility of
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