Appeal No. 2005-2350
Application No. 10/056,352
1 where at least some measure of prior art test tubes are
provided onto which the optical coating material is directly
applied as a substantially opaque surface to the bottom of the
test tube.
Lastly, we address appellants’ arguments beginning at the
bottom of page 4 of the principal brief on appeal relating to the
prosecution of the parent application from which this is a
continuation, further noting that the prior application was
allowed and issued. The examiner points out at pages 10 and 11
of the answer the present claims on appeal are substantially
broader than those which have been allowed in its parent
application. Because of this, the present claims may be made
subject to an obviousness-type double patenting rejection and the
required filing of a terminal disclaimer to avoid a time wise
extension of subject matter originally filed but allowed in a
broader claim presented subsequently. During examination of
subsequent applications the Director is generally permitted to
cause subsequent applications to be examined to avoid any
mistakes. Furthermore, two wrongs do not make a right. In re
Riddle, 438 F.2d 618, 620, 169 USPQ 45, 47 (CCPA 1971); and
Fessenden v. Coe, 99 F.2d 426, 432, 38 USPQ 516, 521 (D.C. Cir.
1938).
8
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