Appeal No. 2004-1546
Application No. 09/030,989
2. Obviousness-type double patenting
The Examiner rejected claims 23 and 30 under the judicially created
doctrine of obviousness-type double patenting as unpatentable over
claims 1 to 15 of U.S. Patent 5,813,972. We affirm.
Appellants assert that the Examiner restricted the claimed subject
matter directed to a medical perfusion device from the claimed subject
matter directed to an adapter pod. Specifically, Appellants state “[i]t is
respectfully submitted that the restriction by the Examiner in the parent
application prevents claims 16-38 from being rejected under the judicially
created doctrine of double patenting. Furthermore, Applicants respectfully
point out that a terminal disclaimer was filed on July 8, 2002.” (Brief, p. 24).
Appellants’ arguments are not persuasive. We first note that this
rejection is limited to claims 23 and 30. The scope of the subject matter of
claims 23 and 30 does not include the features that the Examiner identified
as the basis of restricting the subject matter of claims 16 and 17 from the
parent application.2 Thus, we agree with the Examiner, Answer page 32,
2 The restriction requirement in the parent application restricted the
claimed subject matter directed to an adapter pad having connectors with a
particular configuration, from the claimed subject matter directed to a
medical
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