Appeal No. 2004-1228
Application No. 09/813,088
the economic decision of having to pursue the patents
to issue piecemeal. It is believed that in light of
the delay in allowing these claims, extension of the
patent term would be appropriate. The extension of
term should be the delay attributable to the patent
office.
The appellant’s position is utterly without merit and quite
untenable. It was the appellant who made a strategic decision
not to pursue the appealed claims in the parent application.
Under these circumstances, there is no justification for allowing
an extension of the patent term.
Summary
For these reasons and those set forth in the answer, we
reverse the rejection under 35 U.S.C. § 112, first paragraph, of
appealed claims 18 through 22 as violating the written
description requirement. We affirm, however, the rejections
under: 35 U.S.C. § 103(a) of appealed claims 1, 18 through 25,
30, 31, 40, 41, 43, and 44 as unpatentable over Rodgors in view
of Kline; 35 U.S.C. § 103(a) of appealed claims 2 through 6 and
26 through 28 as unpatentable over Rodgors in view of Kline and
Cecka; and the judicially created doctrine of obviousness-type
double patenting of appealed claims 1 through 7, 18 through 32,
and 40 through 46 as unpatentable over patented claims 1 through
8 of Burger.
The decision of the examiner to reject all of the appealed
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