Appeal No. 2006-0704 Page 12
Application No. 10/060,697
In our view, neither the examiner nor the dissent has provided evidence or
reasoning to show, by a preponderance of the evidence, that the cited references would
have suggested the instantly claimed composition to those of ordinary skill in the art.
3. Obviousness-type double patenting
The examiner rejected claims 16-30 for obviousness-type double patenting as
follows:
• claims 16-30 were rejected as obvious variants of claims 6-8, 14-16, 20, and
21 of U.S. Patent No. 6,652,887 in view of Wironen;
• claims 16-30 were provisionally rejected as obvious variants of claims 1-7 and
9-24 of Application No. 09/947,833; and
• claims 16-30 were provisionally rejected as obvious variants of claims 2, 3, 8,
12-27, 29, and 32 of copending Application No. 09/327,761 in view of Wironen.
Appellants did not dispute the merits of these rejections, but “reserve[d] the right
to address these rejections at a later time, either through traversal, claim amendment,
or by filing terminal disclaimers, upon the indication of otherwise allowable subject
matter.” Reply Brief, bridging sentence, pages 4-5.
Since Appellants have not provided any basis on which to conclude that the
rejections for obviousness-type double patenting are improper, we affirm them.
Summary
The examiner has not made out a prima facie case of obviousness, so we
reverse the rejection under 35 U.S.C. § 103. Appellants have not disputed the merits of
the rejections for obviousness-type double patenting, so we affirm those rejections.
Page: Previous 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 Next
Last modified: November 3, 2007