Appeal 2007-2205
Application 10/396,013
In an Appeal Brief filed on August 03, 2006, Appellant did not
identify the obviousness-type double patenting rejection as being a rejection
that was being presented for review and did not present any argument
pertaining to this rejection. However, the Brief filed did state that the appeal
was from “the rejection dated February 03, 2006” (Br. 1).
In a Notification of Non-Compliant Appeal Brief (Notification)
mailed October 13, 2006, the Examiner indicated that the Brief filed August
03, 2006 was defective for, among other things, the failure to include a
concise statement of the obviousness-type double patenting rejection of
claims 1-7, 11, and 12 as an issue on appeal and the failure to present any
arguments against that rejection. Appellant was given a One Month or
Thirty Days (whichever is longer) extendable time period to file an
Amended Brief or other appropriate correction in reply to the Notification to
avoid dismissal of the appeal.
In reply, an unsigned Appeal Brief was filed on November 02, 2006.
Another Notification was mailed on November 16, 2006, identifying
the failure to sign the Brief and providing a new time period for reply.
An executed Amended Appeal Brief was filed on November 30, 2006.
The November 30, 2006 Brief lists the provisional obviousness-type double
patenting rejection of claims 1-7, 11, and 12 as a ground of rejection to be
reviewed on Appeal ( Br. 4). However, in the Argument Section of the
Amended Brief, Appellant states that “Applicants do not appeal the
obviousness type double patenting rejection” (Br. 11; emphasis original).
In the Examiner’s Answer mailed January 30, 2007, the Examiner
substantially agreed with Appellant’s “Grounds of Rejection to be reviewed
on Appeal” set forth in the Amended Appeal Brief of November 30, 2006
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