Appeal No. 2006-0673 Page 22
Application No. 09/919,555
E. OBVIOUSNESS TYPE DOUBLE-PATENTING OVER CLAIMS 1-19 OF CATTELL '351
Comparison of the appellants' claims 1, 2, 4-16, and 45-54 and claims 1-19 of
Cattell '351 has not persuaded us that the are two sets of claims are not patentably
distinct. Therefore, we reverse the rejection of the former claims under the judicially
created doctrine of obviousness type double-patenting over claims 1-19 of Cattell '351.
III. CONCLUSION
In summary, the rejections under § 102(e) and under § 103(a) are affirmed. The
rejections of claims 1, 2, 4-16, and 45-54 are also affirmed. The rejection under the
judicially created doctrine of obviousness type double-patenting, however, is reversed.
"Any arguments or authorities not included in the brief or a reply brief filed
pursuant to § 41.41 will be refused consideration by the Board, unless good cause is
shown." 37 C.F.R. § 41.37(c)(1)(vii). Accordingly, our affirmance is based only on the
arguments made in the briefs. Any arguments or authorities omitted therefrom are
neither before us nor at issue but are considered waived. Cf. In re Watts, 354 F.3d
1362, 1367, 69 USPQ2d 1453, 1457 (Fed. Cir. 2004) ("[I]t is important that the applicant
challenging a decision not be permitted to raise arguments on appeal that were not
presented to the Board.") No time for taking any action connected with this appeal may
be extended under 37 C.F.R. § 1.136(a)(1)(iv).
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