Appeal No. 2004-1264
Application 09/909,168
In the absence of any substantive argument from appellant
and since it is abundantly clear to us that an obviousness-type
double patenting rejection is a viable rejection where the patent
claims are directed to a combination and the later filed
application claims are directed to a sub-combination, if the
claims of the patent and application are so related that the
later claimed element (sub-combination) is the “essential
distinguishing feature” of the combination, we will sustain the
examiner's rejection of claims 28 through 30 and 34 under the
judicially created doctrine of obviousness-type double patenting.
Next we look to the examiner's rejection of claims 18
through 34 under 35 U.S.C. § 102(b) based on Ferreira. In this
instance, the examiner notes that Ferreira teaches (e.g., in
Figures 3-7) a shoe cleat or spike-carrying unit (26) including a
screw-threaded spigot (34) and a body member having a ring of
free-standing, axially extending posts or lock tongues (33)
projecting therefrom, with the lock tongues each including a base
secured to the body member. The examiner then observes that
“[a]ll of the functional claim language and statements of
intended use do not make an otherwise unpatentable claim
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