Appeal 2006-3031
Application 10/299,734
Based on the totality of the record, we AFFIRM all grounds of
rejection in this appeal essentially for the reasons stated in the Answer, as
well as those reasons set forth below.
OPINION
A. The Rejection over Application No. 10/300,030
The Examiner has made a provisional rejection of claims 1-8 on
appeal under the judicially created doctrine of obviousness type double
patenting over claims 1-6, 11, and 12 of co-pending Application No.
10/300,030, setting forth specific findings and the conclusion of obviousness
(Answer 3, incorporating the rejection from the Office action dated Aug. 5,
2005, paragraph bridging pages 5 and 6).
Appellants’ only argument concerning this rejection is that “it would
be premature” to file a terminal disclaimer because the claims in this
application have not been allowed in their final form (Br. 13). Appellants
further state that, upon allowance of claims 1-8, they “will consider” filing a
terminal disclaimer (id.).
Since Appellants have not contested this rejection, we summarily
affirm the Examiner’s rejection, adopting the findings and conclusion of law
as stated in the Answer and the Office action dated Aug. 5, 2005. We note
the propriety of provisional rejections based on obviousness type double
patenting. See Ex parte Karol, 8 USPQ2d 1771 (Bd. Pat. App. & Int. 1988).
B. The Rejection over Huber and Tresser
The Examiner finds that Huber discloses a water ice composition
having a soft texture similar to that of extruded ice cream which comprises a
center of 20 to 40% dry matter, a degree of overrun of 20 to 80%, a
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