Appeal No. 2004-1264
Application 09/909,168
page 7). Thus, appellant urges that the combination claims do
not render the sub-combination claims obvious, and contends that
the examiner has submitted no authority to the contrary.
What is immediately apparent from the foregoing is that
appellant has made no attempt to provide a specific merits-based
argument establishing error in the examiner’s rejection of claims
28 through 30 and 34 under the judicially created doctrine of
obviousness-type double patenting as being unpatentable over
claim 1 of appellant’s prior U.S. Patent No. 6,272,774.
Instead, appellant merely indicates that he is unaware of any
precedent supporting an obviousness-type double patenting
rejection where the patent claims are directed to a combination
and the application claims are directed to a sub-combination. It
further appears from comments on page 8 of the brief that if such
an obviousness-type double patenting rejection is a viable
rejection in a combination/sub-combination context, then
appellant intends to file an appropriate terminal disclaimer to
overcome the rejection.
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