Appeal No. 2004-2205 Page 11
Application No. 09/766,403
We disagree. For the reasons discussed above, we conclude that the cited
references would have suggested the claimed composition to those of skill in the art,
including the additional limitations of claim 73. We therefore affirm the rejection of claim
73. Claim 74 falls with claim 73.
Other Issues
A commonly assigned patent application (09/765,675) was recently the subject of
another appeal to this board (Appeal No. 2004-0378). Most of the claims in the earlier
appeal differ from the claims in this appeal because they are directed to nanoemulsions
containing cationic, not nonionic, polymers. However, claim 78 of the ‘675 application
appears to be identical to claim 80 of the instant application.
If the instant application is re-filed or subject to further prosecution, the examiner
should review the pending claims in this application and in the ‘675 application. If any of
the claims of the two applications are identical or not patentably distinct, a rejection for
statutory double patenting or obviousness-type double patenting may be appropriate.
In addition, we note that the earlier appeal involving the ‘675 application did not
contain a rejection based on the Cervantes and Casperson references applied in this
case. We also note that, according to PALM, the ‘675 application is still pending before
the examiner. The examiner may wish to review the rejections in the ‘675 application
and consider whether the closest prior art has been applied to, e.g., claim 78 in that
case.
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