Appeal No. 2004-1546
Application No. 09/030,989
that the subject matter of instant claims was not subject to the restriction
requirement in the parent application. We also agree with the Examiner
that Appellants’ terminal disclaimer, filed on July 8, 2002, does not identify
U.S. Patent 5,813,972, which is the basis of this rejection. (Answer, p. 32).
The Examiner rejected claims 23 to 38 under the judicially created
doctrine of obviousness-type double patenting as unpatentable over
claims 1, 6 to 8 of U.S. Patent 5,813,972 in view of Sites. We affirm.
Appellants assert that the restriction is erroneous based upon MPEP
804. In support of this position, Appellants assert “that claims 1 and 6-8 of
patent application U.S. Patent No. 5,813,972 are directed to a medical
perfusion system and not to an adapter pod as claimed in claims 23-38.”
(Brief, p. 24).
Appellants’ arguments are not persuasive. We agree with the
Examiner Answer pages 32 and 33, that the Appellants’ arguments do not
explicitly address the rejection presented. Specifically, Appellants have
not addressed the Sites reference that the Examiner cited for teaching a
medical perfusion system. Further, Appellants’ argument that the
restriction is erroneous based upon MPEP 804 does not explicitly address the
perfusion system. The subject matter of claims 23 and 30 does not further
describe an adapter pad having connectors with particular a configuration.
-8-
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