Ex Parte RAJOPADHYE et al - Page 13

                 Appeal 2007-0856                                                                                      
                 Application 09/281,474                                                                                

                        Thus, we do not agree that the Examiner has set forth a prima facie                            
                 case that the patented compounds, comprising a quinolone nonpeptide or a                              
                 benzodiazepine nonpeptide, are not patentably distinct from the instantly                             
                 claimed compounds, comprising a peptide or peptidomimetic targeting                                   
                 moiety.  We therefore reverse the obviousness-type double patenting                                   
                 rejection of claims 1-10, 12-35, 48-50, 52, and 53.                                                   
                                                  OTHER ISSUE                                                          
                        As discussed in footnote 1, there is arguably some ambiguity as to                             
                 whether claim 1 necessarily requires a linking group.  If prosecution of this                         
                 case is continued, this ambiguity should be resolved.                                                 
                                                    SUMMARY                                                            
                        We affirm the rejection of claims 1, 2, 12-15, 17, 19-21, 25, 27, 28,                          
                 31-35, 48-50, 52, and 53 under 35 U.S.C. § 103.  However, we reverse the                              
                 rejection of claims 1-10, 12-35, 48-50, 52, and 53 for obviousness-type                               
                 double patenting.  Thus, claims 3-10, 16, 18, 22-24, 26, 29, and 30 are not                           
                 currently subject to a rejection.                                                                     














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